KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Harold G. Blackwell ("Blackwell") has brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). By the consent of the parties (see Doc. 22), the Court has designated the undersigned United States Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
With leave of the Court, the parties have jointly waived oral argument. (See Docs. 21, 23). Upon consideration of the administrative record (hereinafter cited as "R. [page number(s)]") (Docs. 12-15) and the parties' briefs (Docs. 16, 19), the Court finds that the Commissioner's decision denying Blackwell benefits is due to be
On March 17, 2010, Blackwell filed an application for DIB
On November 18, 2013, Blackwell timely filed this action for judicial review of the Commissioner's final decision under § 405(g). (See Doc. 1).
In all Social Security cases, a plaintiff (sometimes referred to as a claimant) bears the burden of proving that he or she is unable to perform his or her previous work.
Watkins v. Comm'r of Soc. Sec., 457 F. App'x 868, 870 (11th Cir. Feb. 9, 2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If, in steps one through four of the above-articulated five-step evaluation, a plaintiff proves that he or she cannot do his or her past relevant work, it then becomes the Commissioner's burden, at the fifth step, to prove that the plaintiff 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. Id.; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, but importantly, although "the [plaintiff] 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) (citations omitted).
The task for this Court on judicial review is to determine whether the Commissioner's decision to deny a plaintiff benefits is supported by substantial evidence. Substantial evidence is defined as "more than a scintilla" and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). "In determining whether substantial evidence exists, [a court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded, however, from "deciding the facts anew or re-weighing the evidence." Davison v. Astrue, 370 F. App'x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, "[e]ven if the evidence preponderates against the Commissioner's findings, [a court] must affirm if the decision reached is
At Step Four,
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ, "[a]fter careful consideration of the entire record, ... f[ound] that [Blackwell] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except [Blackwell] can only perform work that will allows [sic] for mildly to moderately impairment [sic] in responding appropriately to supervision, co workers and work pressures in a work setting[, and] is limited to performing simple routine repetitive task [sic] with no more than occasional interaction with others ..."
In making this determination, the ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," as well as "opinion evidence," based on the requirements of relevant regulations and agency rulings. The ALJ specifically considered, inter alia, the testimony of Blackwell and the reports of Dr. John W. Davis and Mr. John S. Marshall, III.
Regarding Mr. Marshall, the ALJ's decision stated as follows:
(R. 39-40).
Blackwell argues that "[a] full reading of the Mental Residual Functional Capacity Evaluation completed by Counselor Marshall shows that []he opined that [Blackwell], secondary to his schizophrenia, would often have deficiencies of concentration, persistence, and pace, that [Blackwell] would have repeated expected episodes of decompensation, and that [Blackwell] would have a marked limitation in completing work-related tasks in a normal workday or workweek." (Doc. 16 at 3 (citing R. 333-43)). Blackwell claims that "[i]f, as stated in the opinion, significant weight was given to Mr. Marshall's report, these limitations would significantly erode the occupational based [sic]." (Id.). Thus, Blackwell argues, remand is warranted because "[m]ore clarification is needed on what weight was given the entirety [sic] to Mr. Marshall's report." (Id.).
As the Commissioner points out, a certified counselor such as Mr. Marshall is not included in the Social Security regulations as an "acceptable medical source[] to establish whether [a claimant]
SSR 06-03p.
De Olazabal v. Soc. Sec. Admin., Com'r, No. 13-15285, 2014 WL 4364889, at *4 (11th Cir. Sept. 4, 2014) (per curiam) (unpublished).
SSR 06-03P, 2006 WL 2329939, at *4-5.
Contrary to Blackwell's assertion, the ALJ at Step Four specifically noted Marshall's finding that Blackwell "had moderate limitations in maintaining concentration, persistence or pace resulting in failure to complete tasks" and gave it "significant weight." (R. 40). This opinion is consistent with that of Dr. John W. Davis, Ph.D., an examining clinical psychologist, and therefore "an acceptable medical source," see 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2), who "reported that [Blackwell]'s ability to show concentration, persistence or pace in an age appropriate manner was from mild to moderately impaired ..." (R. 38. See also R. 328-32).
As for episodes of decompensation, the ALJ determined, at Step Two, that Blackwell had "experienced no episodes of decompensation, which have been of an extended duration." (R. 38). This finding is inconsistent with Marshall's opinion, who found that "episodes of decomposition of workability would likely occur at least on 3 occasions in a year." (R. 338, 340). However, Marshall, not being an "accepted medical source," could not establish the existence of the impairment of decomposition. See 20 C.F.R. § 404.1513(a). Rather, his opinion could only be offered to demonstrate the severity and the effect on the claimant's daily life of the impairment of decomposition once the existence of that impairment had been established by an "accepted medical source." See 20 C.F.R. § 404.1513(d); De Olazabal, 2014 WL 4364889, at *4. The ALJ, in Step Two, had determined that Blackwell did not suffer from an impairment of decomposition, and Blackwell has pointed to no record evidence from another "accepted medical source" indicating that this finding was error; as such, there was no need to consider Marshall's opinion regarding the severity or effect of an impairment whose existence had not been shown.
Regarding Blackwell's ability to complete work-related tasks in a normal workday or workweek, Marshall wrote in his report:
(R. 338-39.). This assessment was also reflected on a Mental Residual Functional Capacity Questionnaire attached to the report. (R. 340-41).
Essentially, in this claim of error, Blackwell "faults the ALJ for not explicitly assigning weight to every part of [Mr. Marshall]'s opinion and for not discussing [Mr. Marshall]'s finding that [Blackwell would have a marked limitation in completing work-related tasks in a normal workday or workweek]. However, `there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision[.]'" Newberry v. Comm'r, Soc. Sec. Admin., 572 F. App'x 671 (11th Cir. 2014) (11th Cir. July 14, 2014) (per curiam) (unpublished) (quoting Dyer v. Barnhard, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)) (alterations added).
Moreover, "even if the ALJ erroneously failed to explicitly assign weight to and discuss every aspect of [Marshall]'s opinion, this error was harmless because it is still clear that the ALJ's rejection of the portions of [Marshall]'s opinion that are inconsistent with the ALJ's ultimate conclusion was based on substantial evidence, see Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (classifying certain errors as harmless in the context of the substantial-evidence standard)." Id. As noted by the ALJ, on May 15, 2009, Dr. Davis "reported that despite the claimant's Schizophrenia, he was only mild to moderately limited and could still perform simple repetitive tasks." (R. 39 (citing R. 328-32)). The ALJ found Blackwell's own testimony "concerning the intensity, persistence and limiting effects of" his reported symptoms to be "not credible to the extent they are inconsistent with" the ALJ's RFC assessment (R. 39), and Blackwell does not challenge this determination on appeal.
Dr. John Pybass, M.D., had provided responses to a Mental Residual Functional Capacity Questionnaire identical to the one attached to Marshall's report.
(R. 40).
Marshall's assessment of a "marked" limitation in completing work-related tasks in a normal workday or workweek is merely cumulative of Dr. Pybass's assessment, and Blackwell does not contest on appeal the ALJ's rejection of Dr. Pybass's "marked" assessments in favor of the lesser assessments of other physicians — indeed, he does not argue that any of the ALJ's stated evidentiary determinations at Step Four are erroneous. "[T]he ALJ "is free to reject the opinion of any physician when the evidence supports a contrary conclusion.'" Hughes v. Comm'r of Soc. Sec. Admin., 486 F. App'x 11, 13 (11th Cir. 2012) (per curiam) (quoting Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (quotation omitted)). The Eleventh Circuit law is clear that, "[e]ven if the evidence preponderates against the Commissioner's findings, [the court] must affirm if the decision reached is supported by substantial evidence." Crawford, 363 F.3d at 1158-59 (alterations added) (quotation omitted). Here, the ALJ cited to record evidence medical evidence in rejecting a finding of "marked" limitations for Blackwell, and Blackwell does not contest the propriety of that evidence. Accordingly, as substantial evidence supports the ALJ's determination that Blackwell did not suffer from "marked" limitations, any failure to specifically cite Marshall's assessment to the contrary was harmless.
"At step five, the Commissioner must determine that significant numbers of jobs exist in the national economy that the claimant can perform. An ALJ may make this determination either by applying the Medical Vocational Guidelines or by obtaining the testimony of a vocational expert." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (internal citations omitted). Here, under Step Five, the ALJ used only the testimony of a vocational expert and did not use the Guidelines.
"A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy." Phillips, 357 F.3d at 1240. "`In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments.'" Winschel, 631 F.3d at 1180 (quoting Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam)). However, "the ALJ was not required to include findings in the hypothetical that the ALJ had properly rejected as unsupported." Crawford v. Comm'r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam). Accord, e.g., Clyburn v. Comm'r, Soc. Sec. Admin., 555 F. App'x 892, 895 (11th Cir. 2014) (per curiam); Barclay v. Comm'r of Soc. Sec. Admin., 274 F. App'x 738, 742 (11th Cir. 2008) (per curiam)
At the August 16, 2011 hearing, the ALJ posed the following hypothetical question to the testifying vocational expert:
(R. 121-22). In response to this hypothetical, the vocational expert testified that representative occupations which the hypothetical person would be able to perform included "production assembler," "garment bagger," and "courier." (R. 122).
Blackwell argues that "[t]his hypothetical is problematic because it does not present any vocational limitations based on [Blackwell]'s mental limitations, though the record clearly reflects mental diagnoses of schizophrenia, contains medical reports detailing mental limitations ..., and shows that the ALJ's own RFC included findings of more specific mental limitations." (Doc. 16 at 4).
In response, the Commissioner does not appear to dispute Blackwell's characterization of this hypothetical as "problematic." (See Doc. 19 at 13-15). Instead, she points to a hypothetical posed by a different ALJ to the same vocational expert at a hearing two years earlier, on August 5, 2009, that she argues adequately encompassed all of Blackwell's mental limitations. (See id.). The same vocational expert, in response to the August 2009 hypothetical, identified two of the representative jobs — production assembler and garment bagger — that he also listed in response to the August 2011 hypothetical.
However, in the opinion that constitutes the Commissioner's final decision, there is no indication that the deciding ALJ considered the vocational expert's August 2009 testimony at Step Five. Instead, the ALJ references the vocational expert's testimony only from the August 2011 hearing.
In Winschel, "the ALJ determined at step two that [the claimant]'s mental impairments caused a moderate limitation in maintaining concentration, persistence, and pace. But the ALJ did not indicate that medical evidence suggested [the claimant]'s ability to work was unaffected by this limitation, nor did he otherwise implicitly account for the limitation in the hypothetical." Winschel, 631 F.3d at 1181. Holding that "the ALJ should have explicitly included the limitation in his hypothetical question to the vocational expert[,]" the Eleventh Circuit found that an ALJ's hypothetical question to a vocational expert "failed to include or otherwise implicitly account for all of [the claimant]'s impairments" — and thus did not constitute "substantial evidence." Id. The Eleventh Circuit concluded by stating that, "[o]n remand, the ALJ must pose a hypothetical question to the vocational expert that specifically accounts for [the claimant']s moderate limitation in maintaining concentration, persistence, and pace." Id.
Here, the ALJ expressly determined that Blackwell "has the residual functional capacity to perform light work ... except [he] can only perform work that will allows [sic] for mildly to moderately impairment [sic] in responding appropriately to supervision, co workers, and work pressures in a work setting[,]" and that he "is limited to performing simple routine repetitive task [sic] with no more than occasional interaction with others ..." (R. 38-39). However, his hypothetical question to the vocational expert at the August 2011 hearing did not include his express finding that Blackwell would be limited to performing simple, routine, repetitive tasks with only occasional interaction with others. Moreover, there is no indication in the Commissioner's final decision that the ALJ considered the testimony of the vocational expert at the August 2009 hearing. As such, "[b]ecause the ALJ asked the vocational expert a hypothetical question that failed to include or otherwise implicitly account for all of [Blackwell]'s impairments, the vocational expert's testimony is not `substantial evidence' and cannot support the ALJ's conclusion that [Blackwell] could perform significant numbers of jobs in the national economy." Winschel, 631 F.3d at 1181. Therefore, the ALJ's determination at Step Five is due to be
In accordance with the foregoing analysis, it is
Final judgment in accordance with Federal Rule of Civil Procedure 58 and this Memorandum Opinion and Order shall issue by separate document.
Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012).
