WALLACE CAPEL, JR., Chief Magistrate Judge.
Kenneth Wade Long ("Plaintiff") filed an application for disability insurance benefits under Title II of the Social Security Act, alleging he became disabled on October 1, 2009. Plaintiff later amended his alleged onset date to January 15, 2014.
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is unable to
42 U.S.C. § 423(d)(1)(A).
To make this determination, the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying disability once they have carried the burden of proof from Step One through Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity ("RFC"). Id. at 1238-39. The RFC is what the claimant is still able to do despite the claimant's impairments and is based on all relevant medical and other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines ("grids"), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert ("VE"). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorily-required finding of "Disabled" or "Not Disabled." Id.
The court's review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the Commissioner's findings, [a reviewing court] must affirm if the decision reached is supported by substantial evidence."). A reviewing court may not look only to those parts of the record which support the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was fifty years old on the date of the hearing before the ALJ, and has a high school education. Tr. 30-31. Following the administrative hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff "did not engage in substantial gainful activity during the period from his alleged onset date of January 15, 2014[,] through his date last insured of December 31, 2014[.]" Tr. 16. At Step Two, the ALJ found that Plaintiff suffers from the following severe impairments: "obesity with reports of pain of unknown etiology and sciatica." Tr. 16. At Step Three, the ALJ found that Plaintiff "[t]hrough the date last insured, . . . did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments[.]" Tr. 17. Next, the ALJ articulated Plaintiff's RFC as follows:
Tr. 17-18. At Step Four, having consulted with a VE, the ALJ concluded that, given Plaintiff's RFC "[t]hrough the date last insured, the claimant was capable of performing past relevant work as a textile supervisor [] and tow motor operator/winder/card operator/pinner[.]" Tr. 19. The ALJ noted that "[t]his work did not require the performance of work-related activities precluded by the claimant's residual functional capacity[.]" Tr. 19. The ALJ further found that, "[a]lthough [Plaintiff] is capable of performing past relevant work there are other jobs existing in the national economy that he is also able to perform." Tr. 20. Thus, the ALJ found, as an alternate finding for Step Five, that "considering [Plaintiff's] age, education, work experience, and residual functional capacity, there were other jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed[.]" Tr. 20. The ALJ identified several representative occupations, including packager, store laborer, and janitor. Tr. 21. Accordingly, the ALJ concluded that Plaintiff "was not under a disability, as defined in the Social Security Act, at any time from January 15, 2014, the amended alleged onset date, through December 31, 2014, the date last insured[.]" Tr. 21.
Plaintiff presents five issues to this court which he claims are reversible error. First, Plaintiff argues that "[t]he ALJ failed to accord proper weight to the treating physician, Dr. Dolores Victoria[,]" and that the "[t]he ALJ substituted his own opinion for the opinion of Dr. Dolores Victoria." Doc. 11 at 1. Second, Plaintiff argues that "[t]he [f]inding that [he] can perform past work is not supported by [s]ubstantial [e]vidence and is not in accordance with proper legal standards." Id. Third, Plaintiff argues that he "Meets Grid Rule 201.14." Id. Fourth, Plaintiff argues that "[t]he case should be remanded because the ALJ failed to assess the intensity and persistence of [his] symptoms pursuant to Social Security Ruling 16-3p." Id. Finally, Plaintiff argues that the ALJ "failed to consider all of [his] severe impairments." Id.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Absent "good cause," an ALJ is to give the medical opinions of treating physicians "substantial or considerable weight." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause to discount a treating physician's opinion exists "when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips, 357 F.3d at 1241. With good cause, an ALJ may disregard a treating physician's opinion, but he "must clearly articulate [the] reasons" for doing so. Id. at 1240-41. The Eleventh Circuit has recently re-emphasized that courts "will not second guess the ALJ about the weight the treating physician's opinion deserves so long as he articulates a specific justification for it." Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 823 (11th Cir. 2015).
Here, Plaintiff argues the ALJ committed reversible error by giving little weight to the opinion of Plaintiff's treating physician, Dr. Dolores Victoria. Doc. 11 at 6-8. Dr. Victoria completed a functional capacity evaluation of Plaintiff on December 9, 2014, which concluded, inter alia, that Plaintiff had chronic and continuous pain as a result of a medical condition; that he would need to rest constantly during the day; and that, as a result of his condition, attendant limitations, pain and/or any side effects of medication(s), Plaintiff "would miss three or more days per month from work." Tr. 262.
The ALJ afforded Dr. Victoria's opinion "little weight." Tr. 20. In so doing, the ALJ provided the following reasoning:
Tr. 19 (emphasis added).
A review of the ALJ's opinion in its entirety further supports the ALJ's reasoning for discounting Dr. Victoria's opinion. Specifically, the ALJ noted that Plaintiff's "[p]hysical examinations were generally unremarkable[,]" and that he was "noted to have normal range of motion, muscle strength, and stability in all extremities, with no pain on inspection and no edema." Tr. 18-19. The ALJ also noted that "[r]ecords dated since the amended alleged onset date are also rather unremarkable. Although [Plaintiff] complained of intense pain, February, April and June 2014 physical examination records all note normal range of motion, muscle strength, and stability in all extremities with no pain on inspection. . . . A lumbar x-ray was negative." Tr. 19. Further, the ALJ noted that Plaintiff's "ability to maintain his household, live alone, and drive, in conjunction with the medical evidence demonstrating minimal abnormalities, reflect[ed] a significant functional capacity and not an individual unable to sustain regular and continuing work due to medically determinable impairments." Tr. 19. In sum, the ALJ concluded that, "[w]hile records confirm some complaints of back pain, there is little to establish any other impairments, and findings on exam are fairly normal." Tr. 19.
As noted previously, an ALJ must give the opinion of a treating physician "substantial or considerable weight unless good cause is shown to the contrary." Phillips, 357 F.3d at 1240. "Good cause exists `when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.'" Id. at 1240-41. Dr. Victoria's opinion was discounted in large part due to the fact that subjective medical records did not support Dr. Victoria's opinion. Indeed, the ALJ noted that physical examinations of Plaintiff were unremarkable, and that he was noted to have normal range of motion, muscle strength, and stability in all extremities, with no pain on inspection. Tr. 19; Tr. 248 (Ex. F) (physician report on April 9, 2014, noting that Plaintiff has "[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection."). This reason is considered "good cause" to discount the opinion of Dr. Victoria.
Plaintiff argues that the ALJ's decision should be reversed because the ALJ's finding that Plaintiff can perform past work is not supported by substantial evidence, nor is it in accordance with proper legal standards. Doc. 11 at 8-10. Plaintiff challenges the ALJ's failure to "consider any of the duties of [Plaintiff's] past work" and his failure to evaluate Plaintiff's "ability to perform those duties in spite of his impairments." Id. He points the court to several cases where the court found reversible error when the ALJ failed to develop the particulars of the plaintiff's past relevant work. Id. at 8-10 (citing Johnson v. Colvin, No. 8:14-cv-0041-T-27TBM, 2015 WL 1423127 (M.D. Fla. March 27, 2015); Butler v. Comm'r of Soc. Sec., Case No. 8:15-cv-2356-T-27JSS, 2016 WL 7217253 (M.D. Fla. Nov. 11, 2016); and Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990)).
Social Security Ruling 82-62 provides that, in finding that an individual has the capacity to perform a past relevant job, the determination must contain a "specific finding[ ] of fact . . . as to the physical and mental demands of the past job/occupation." SSR 82-62 (S.S.A.), 1982 WL 31386 at *4. The Ruling further provides that a claimant can return to past relevant work if he can perform the specific job he performed, either in the manner he performed it, or as it is usually performed in the national economy. See Dudley v. Apfel, 75 F.Supp.2d 1381, 1382 (N.D. Ga. 1999).
During the hearing before the ALJ, the following exchange occurred with Plaintiff:
Tr. 31-34. Later, the ALJ turned to examine the VE. The following exchange occurred.
Tr. 47-50.
Clearly, the exchange between the ALJ and Plaintiff shows that the ALJ solicited testimony from Plaintiff regarding the type of hands-on work he performed in his previous position. See Tr. 34. Indeed, Plaintiff provided that he performed mechanical work, helped the technicians out, and changed propane tanks and batteries on occasion. Tr. 34. In determining Plaintiff could perform past relevant work, the ALJ specifically opined that Plaintiff could perform not only his job as a supervisor but also jobs as a tow motor operator/winder/card operator/spinner, accounting for the work described by Plaintiff outside the confines of traditional supervision. Tr. 47-50. Further, in concluding that Plaintiff was able to perform his past relevant work, the VE specifically noted that Plaintiff had to occasionally perform the tasks of which he testified. See Tr. 47-50. The ALJ may rely on a VE's testimony regarding the physical and mental demands of the claimant's past work when determining whether a claimant can perform past relevant work. See Simpson v. Comm'r of Soc. Sec., 423 F. App'x 882, 884 (11th Cir. 2011). Thus, Plaintiff's argument fails.
Plaintiff argues the ALJ erred in failing to find that Plaintiff meets Grid Rule 201.14. Doc. 11 at 11. Plaintiff asserts that he was fifty years old when he was last insured, and once his testimony was accepted as credible by the ALJ, he was eligible for benefits or at least limited to sedentary work under the above-referenced rule. Id.
Once a claimant proves that he can no longer perform past relevant work, the burden shifts to the Commissioner "to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform." Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). One way in which the ALJ may fulfill this burden is through reliance upon the Medical Vocational Guidelines. 20 C.F.R. pt. 404 subpt. P, app. 2. The Medical Vocational Guidelines ("Grids") provide applicants with "an alternate path to qualify for disability benefits when their impairments do not meet the requirements of the listed qualifying impairments." Phillips, 357 F.3d at 1240. The Grids provide for ALJs "to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience[,]" as each of those factors may limit the number of jobs "realistically available" to a claimant. Id. Combinations of those factors yield a statutorily-required finding of "Disabled" or "Not Disabled." Id. Importantly, however, an ALJ relies upon the Grids only when he has determined that the claimant cannot perform past relevant work. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) ("If the claimant is unable to do past relevant work, the examiner proceeds to the fifth and final step of the evaluation process . . . [and,] [i]f nonexertional impairments exist, . . . may use the Medical-Vocational Guidelines as a framework to evaluate vocational factors[.]"); Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987) ("[O]nce the claimant has established that she cannot return to her past relevant work the burden shifts to the Secretary to prove that the claimant is capable, considering her age, education, and work experience, of engaging in any other kind of gainful employment[.] At this stage, the Medical Vocational Guidelines[,] may come into play.") (internal citations omitted).
Here, the ALJ did not determine that Plaintiff could not perform past relevant work. In fact, he concluded just the opposite. Tr. 19-20. Thus, Plaintiff's argument that Plaintiff meets Grid Rules 201.14 is inapplicable in this case and, therefore, unpersuasive.
Plaintiff argues that the ALJ failed to assess the intensity and persistence of Plaintiff's symptoms pursuant to Social Security Ruling 16-3p. Doc. 11 at 11-13. Plaintiff asserts that the ruling is retroactive.
Social Security Ruling 16-3p "provides guidance about how [the Social Security Administration] evaluate[s] statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims" under the Social Security Act. SSR 16-3p, 2016 WL 1119029, at *1. The ruling announced that the Social Security Administration "would no longer assess the `credibility' of an applicant's statements, but would instead focus on determining the `intensity and persistence of [the applicant's] symptoms.'" Cole v. Colvin, 831 F.3d 411, 411 (7th Cir. 2016) (alteration in original). Thus, "[t]he change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence." Id. (emphasis removed).
The ruling further explains that an ALJ is to use a two-step process to evaluate a claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *3-4. At step one, an ALJ must determine whether a claimant has a medically determinable impairment that could reasonably be expected to produce a claimant's alleged symptoms. Id. In so doing, the ALJ should not consider "whether the severity of [a claimant's] alleged symptoms is supported by the objective medical evidence." Id. at *4. Instead, if a claimant has a medically determinable impairment that he alleges causes him extreme pain and limits his ability to function, the ALJ should find that the claimant "has a medically determinable impairment that could reasonably be expected to produce the symptom of pain[,]" and should proceed to step two. Id. At step two, the ALJ should evaluate the intensity and persistence of a claimant's symptoms and determine the extent to which those symptoms limit his ability to perform work-related activities. Id. In making that determination, the ALJ should "examine the entire case record, including the objective medical evidence;
Here, in assessing the intensity and persistence of Plaintiff's symptoms, the ALJ stated, in pertinent part:
Tr. 18. The ALJ then discussed objective medical evidence as well as other evidence as described in the regulations to support that conclusion. Particularly, the ALJ noted that Plaintiff's physical examinations were "generally unremarkable"; that he had "moderate musculoskeletal pain with motion" in July 2013, but a "normal range of motion, muscle strength, and stability in all extremities, with no pain on inspection and no edema" in September and November 2013; and that despite complaints of intense pain since the amended alleged onset date, Plaintiff's February, April, and June 2014 physical examinations "all note normal range of motion, muscle strength, and stability in all extremities with no pain on inspection." Tr. 18-19. Upon conclusion of that discussion, the ALJ stated:
Tr. 25.
Regardless of whether SSR 16-3p is to be applied retroactively to Plaintiff's claim, the undersigned concludes that the ALJ did not err because the ALJ's evaluation of Plaintiff's symptomatology does not conflict with the clarification set forth by SSR 16-3p regarding how an ALJ should evaluate the intensity and persistence of a claimant's alleged symptoms. Indeed, the ALJ followed the two-step process discussed above. In the first step, he determined that Plaintiff's "medically determinable impairment could reasonably be expected to cause the alleged symptoms." Tr. 18. In the second step, without assessing Plaintiff's credibility with regards to his character, the ALJ assessed Plaintiff's symptom credibility based upon the evidence in the record. Tr. 18. Further, the ALJ did not rely solely upon objective medical evidence to determine that Plaintiff's symptoms were not entirely credible, as prohibited by SSR 16-3p. Instead, the ALJ based his opinion on both objective medical evidence and "other" evidence within the record, which continues to be permissible under the new ruling. See Cole, 831 F. 3d at 411 (noting that "obviously administrative law judges will continue to assess the credibility of pain assertions by applicants" but will not impeach a claimant's character in doing so). Thus, the undersigned concludes that, even assuming retroactivity of SSR 16-3p, the ALJ's analysis of Plaintiff's symptomatology complies with SSR 16-3p.
Plaintiff's final claim is that the ALJ failed to consider Plaintiff's hypertension, fibromyalgia, carpal tunnel syndrome, and depression according to SSR 96-3p. Doc. 11 at 13. Plaintiff also argues that the ALJ failed to follow the "slight abnormality" standard in finding that Plaintiff's hypertension, fibromyalgia, carpal tunnel syndrome, and depression were not severe. Id.
At Step Two, the ALJ determined Plaintiff had the severe impairments of "obesity with reports of pain of unknown etiology and sciatica." Tr. 16. The ALJ also found that Plaintiff's "allegations of fibromyalgia, carpal tunnel syndrome[,] and depression [were] not medically determinable impairments" based upon a lack of evidence from an acceptable medical source. Tr. 16. The ALJ noted that Plaintiff "failed to submit any medical records showing significant complaints of or treatment for these conditions, or clinical and laboratory diagnostic techniques indicating such from an acceptable medical source." Tr. 17.
Although Plaintiff asserts that the ALJ did not properly consider his hypertension, fibromyalgia, carpal tunnel syndrome, and depression as severe impairments, in his brief to this court, he fails to point to any evidence within his medical records of his fibromyalgia or carpal tunnel syndrome. See Doc. 11 at 13-15. Accordingly, any argument that the ALJ failed to consider those impairments is waived. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) ("We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority."). As to his hypertension and depression, Plaintiff references two medical records to support his argument that the ALJ failed to properly consider his hypertension and depression: one from April 2014 in which the record merely lists hypertension and depressive disorder, and the other from September 21, 2014, listing the same.
In addressing Plaintiff's hypertension, the ALJ noted:
Tr. 16. An independent review of the medical evidence indicates that Plaintiff's hypertension was stable under medication. See Tr. 234, 240 (noting that hypertension was under "fair control"); Tr. 242 (noting hypertension is "stable on meds"). Plaintiff has not pointed the undersigned to any evidence that contradicts the conclusion that Plaintiff's hypertension is controlled by medication, or any evidence that Plaintiff's hypertension "significantly limits [his] physical or mental abilit[y] to do basic work activities[,]" as required under SSR 96-3p to qualify the impairment as severe. See SSR 96-3p. Accordingly, Plaintiff's argument that the ALJ failed to consider his hypertension in accordance with SSR 96-3p fails.
Similarly, an independent review of the medical evidence does not indicate that Plaintiff's depression caused a significant limitation in his physical or mental ability to perform basic work activities, and Plaintiff has not pointed the court to records showing otherwise. Clearly, the ALJ considered Plaintiff's depression, but found that the depression was not a medically determinable impairment because the allegation lacked support from an acceptable medical source. See Tr. 16-17. Accordingly, because Plaintiff has not supported his argument that the ALJ failed to determine his depression was severe with any evidence from the record, and because the undersigned does not independently find such evidence, Plaintiff's argument that the ALJ failed to consider his depression in accordance with SSR 96-3p fails.
Finally, because the ALJ found that Plaintiff suffered from severe impairments and therefore continued past Step Two in the five-step analysis to determine disability, Plaintiff's argument that the ALJ did not follow the "slight abnormality" standard in finding that Plaintiff's hypertension, fibromyalgia, carpal tunnel syndrome, and depression were severe impairments fails.
"Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected. The claimant's burden at step two is mild. An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); accord Stone v. Comm'r of Soc. Sec., 586 F. App'x 505, 511-12 (11th Cir. 1984). However, "[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be considered severe." Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010) (citations omitted); accord Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). The finding of a single severe impairment is all that step two requires. Heatly, 382 F. App'x at 824-25.
As noted above, the ALJ here did not find Plaintiff's hypertension, fibromyalgia, carpal tunnel syndrome, and depression to be severe impairments. However, even if these impairments are severe as Plaintiff alleges, because the ALJ found that Plaintiff has at least one severe impairment, the ALJ did all that was required at Step Two. Beck-Easley v. Colvin, Civil Action File No. 1:13-CV-02869-JFK, 2015 WL 1401646, at * 7 (N.D. Ga. March 26, 2015). In other words, even if the ALJ should have considered Plaintiff's other impairments as severe, any failure to do so was harmless error because the ALJ continued past Step Two and did not deny Plaintiff benefits at that point. See Medina v. Soc. Sec. Admin., 636 F. App'x 490, 492-93 (11th Cir. 2016) ("Thus, even if Medina's other conditions should have been categorized as severe impairments, any error was harmless because the ALJ determined that her obesity and `thyroid cancer status post total thyroidectomy' were severe impairments, allowing him to move onto step three of the test."). Further, because the ALJ decided this case at Step Four, Plaintiff bears the burden of proving that his conditions preclude his ability to perform past relevant work. See 20 C.F.R. § 404.1545(a)(3) ("In general, you are responsible for providing the evidence we will use to make a finding about your residual functional capacity.). As noted previously in this section, Plaintiff did not show that his hypertension, fibromyalgia, carpal tunnel syndrome, and depression caused significant limitations in his physical or mental ability to perform basic work activities. Accordingly, Plaintiff's argument that the ALJ failed to adequately consider Plaintiff's hypertension, fibromyalgia, carpal tunnel syndrome, and depression fails.
For all of the reasons given above, the undersigned Magistrate Judge concludes that the decision of the Commissioner is AFFIRMED. A separate judgment will issue.
