ABDUL K. KALLON, District Judge.
Plaintiff Christopher Hearn ("Hearn") brings this action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), seeking review of the final adverse decision of the Commissioner of the Social Security Administration ("SSA"). This court finds that the Administrative Law Judge's ("ALJ") decision — which has become the decision of the Commissioner — is supported by substantial evidence. Therefore, for the reasons elaborated herein, the court will affirm the decision denying benefits and deny Hearn's motion to remand.
Hearn, who has no past relevant work, filed an application for Title XVI Supplemental Security Income on December 1, 2008, alleging an amended disability onset date of June 24, 2010, (R. 29), due to bipolar disorder and depression, (R. 251). After the SSA denied Hearn's claim, he requested a hearing before an ALJ. (R. 139-40). The ALJ subsequently denied Hearn's claim, (R. 26-45), which became the final decision of the Commissioner when the Appeals Council refused to grant review, (R. 1-6). Hearn then filed this action for judicial review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). Doc. 1.
The only issues before this court are whether the record contains substantial evidence to sustain the ALJ's decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal standards. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the Commissioner's "factual findings are conclusive if supported by `substantial evidence.'" Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the Commissioner; instead, it must review the final decision as a whole and determine if the decision is "reasonable and supported by substantial evidence." See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial evidence falls somewhere between a scintilla and a preponderance of evidence; "[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the court must affirm the Commissioner's factual findings even if the preponderance of the evidence is against the Commissioner's findings. See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ's findings is limited in scope, it notes that the review "does not yield automatic affirmance." Lamb, 847 F.2d at 701.
To qualify for disability benefits, a claimant must show "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrated by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g). Specifically, the Commissioner must determine in sequence:
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). "An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of `not disabled.'" Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). "Once a finding is made that a claimant cannot return to prior work the burden shifts to the Secretary to show other work the claimant can do." Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
In performing the five step analysis, the ALJ found that Hearn had not engaged in substantial gainful activity since June 24, 2010, and, therefore, met Step One. (R. 44). Next, the ALJ found that Hearn satisfied Step Two because he suffered from the severe impairments of "mood disorder, [not otherwise specified], borderline IQ and personality disorder." Id. The ALJ then proceeded to the next step and found that Hearn failed to satisfy Step Three because he "does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments." Id. Although the ALJ answered Step Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he determined that Hearn has the residual functional capacity (RFC) to perform "medium work as defined in 20 CFR 416.967(c) which allows simple, repetitive, non-complex tasks. [Hearn] should primarily work with or around things as opposed to the general public with no driving or exposure to unprotected heights." Id. Next, the ALJ found "[Hearn] has no past relevant work." Id. Lastly, in Step Five, the ALJ considered Hearn's age, education, work experience,
The court now turns to Hearn's motion for remand under sentences four and six of 42 U.S.C. § 405(g), doc. 12, and his contentions that (1) his impairments meet or equal a listed impairment; (2) the ALJ failed to afford proper weight to the opinions of Dr. David Wilson, Ph.D.; (3) the ALJ failed to consider all of his severe impairments; (4) the ALJ failed to consider Hearn's impairments in combination; (5) the ALJ's hypothetical question to the vocational expert (VE) did not include all of Hearn's limitations when the evidence submitted to the Appeals Council is considered; (6) the ALJ's decision is not supported by substantial evidence when the Appeals Council evidence is considered; and (7) the Appeals Council failed to show in its written denial of review that it had adequately evaluated the new evidence. See doc. 9 at 10-20. The court will addresses each contention in turn.
Hearn contends that the record does not include evidence he submitted to the Appeals Council,
(R. 2). Based on this determination, the Appeals Council did not include the submissions in the record, and presumably returned the evidence to Hearn.
Hearn's contention that this court should remand the case under sentence four is unavailing because any judgment of remand under sentence four must be "upon the pleadings and transcript of the record."
To obtain a remand under sentence six, the settled law in this circuit requires Hearn to establish that (1) there is new, noncumulative evidence; (2) the evidence is material; and (3) there is good cause for failure to submit the evidence at the administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). The new evidence is material if it is "relevant and probative so that there is a reasonable possibility that it would change the administrative result." Id. Remand is not warranted here because Hearn has not established that the evidence is relevant to his condition at the time of the ALJ's decision. Although Hearn correctly points out that treatment records after the date of the decision may be relevant, doc. 12 at 4, he does not specify how or why the treatment records he submitted are relevant, except to assert that "all submissions describe physical and psychological symptoms manifested by [Hearn] that, due to their nature and severity, could bear on her [sic] condition during the relevant period," id. at 5 (emphasis added). Consequently, Hearn has failed to failed to meet his burden of properly presenting the issue for decision. See Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278 (11th Cir.2009) ("[S]imply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal.").
Alternatively, the court finds that the evidence is not material because it fails to rise to the level necessary to show a reasonable expectation of changing the administrative result. A review of the evidence submitted by Hearn shows that it is not chronologically relevant to Hearn's condition on or before January 24, 2011, the date of the ALJ's decision. For example, Hearn received treatment on March 22, 2011, for a cut on his left foot caused by a sharp piece of metal that occurred that day, doc. 9-1 at 84, and, as such, is an injury that is unrelated to Hearn's condition at the time of the ALJ's decision. The evidence rejected by the Appeals Council also contains treatment records showing Hearn's admission for three days to the Marshal Medical Center South on April 25, 2011, for evaluation of chest pain radiating into the left shoulder. Id. at 13. Significantly, at intake, Hearn reported "no significant past medical history," id. at 15, which belies his contention that his cardiovascular problems manifested prior to the ALJ's decision.
The remaining treatment notes show Hearn sought treatment for chest pain of two days duration on January 14, 2012, id. at 53-64, and was evaluated for suspected seizures on January 11, 2012, id. at 88-103. These two treatment notes from approximately one year after the ALJ's decision are hardly chronologically relevant. Finally, Hearn also submitted an updated psychological evaluation and mental health source statement obtained in June 2012 (at the behest of his attorney) from Dr. David Wilson, Ph.D.
Based on its review of the evidence, the court finds the medical records forming the basis of Hearn's motion are not material because they are not chronologically relevant, and are unlikely to change the administrative finding. Accordingly, even if Hearn had properly presented the issue for decision, his motion for remand is without merit and will be denied.
Hearn next contends that he meets listings 12.04, 12.06,
To determine whether Hearn met listing 12.04 or 12.08, the ALJ initially considered whether Hearn satisfied the paragraph B criteria of the listings.
The ALJ then addressed the paragraph C criteria of listing 12.04
(R. 39).
To support his contention that the ALJ erred by finding he did not meet a listing, Hearn quotes portions of his testimony and summarizes portions of the medical evidence. Doc. 9 at 10-14. However, Hearn never explained how his testimony shows that he meets a listing, nor does he contend that the ALJ erred in assessing his credibility. Moreover, the evidence cited by Hearn is insufficient to satisfy his burden of establishing that he meets one of the relevant listings,
Hearn's next contention is that the ALJ failed to afford proper weight to the opinions of Dr. David Wilson, Ph.D., who examined Hearn on July 28, 2010, at the request of his attorney. Doc. 9 at 14. As a nontreating source, Dr. Wilson's opinions are not entitled to controlling weight under 20 C.F.R. § 404.1527(c)(2). Consequently, the ALJ had to consider several factors to determine the weight, if any, to give Dr. Wilson's opinions. These factors include whether Dr. Wilson (1) had examined Hearn; (2) had a treating relationship with Hearn; (3) presented medical evidence and explanation supporting the opinion; (4) provided an opinion that is consistent with the record as a whole; and (5) is a specialist. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Moreover, the ALJ "may reject the opinion of any physician when the evidence supports a contrary conclusion." Bloodworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). Indeed, even a treating physician's opinions, which are entitled to more deference than those of Dr. Wilson, may be rejected if the ALJ has "good cause." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
To support his contention that the ALJ erred in rejecting Dr. Wilsons opinions, Hearn directs the court to Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995). In Wilder, the court "consider[ed] with a degree of suspicion the administrative law judge's decision to go against the only medical evidence in the case, that of a psychiatrist not retained by the applicant but appointed by the administrative law judge himself to advise on [the claimant's] condition." Id. at 337 (emphasis added). This fact distinguishes Wilder from the present case because, here, Dr. Wilson was retained by Hearn's attorney, and there was extensive medical evidence from both treating and consultative examiners. In fact, the ALJ discussed in detail the inconsistencies between Dr. Wilson's findings and those of Dr. June Nichols, Ph.D., the SSA consultative mental examiner. (R. 41-42). For example, the ALJ noted that during Dr. Nichols' evaluation, Hearn "could not recall the grades he made in school or whether he exhibited any disciplinary problems," and "did not recall his childhood or his work history," yet when he was evaluated by Dr. Wilson, Hearn "was able to recall more detailed information as to the nature of his condition," "was able to recall incidents from his childhood in regard to mental health treatment as well as treatment for seizures," and could "recall the medication he was treated with as a child and while he was incarcerated." (R. 41). The ALJ also observed that while Hearn reported to Dr. Nichols that "he lived with friends and enjoyed talking with them," he told Dr. Wilson "that he did not have friends or participate in social activities." Id. Moreover, the ALJ found it significant that Dr. Wilson assessed Hearn with a GAF score of 50, indicating severe mental symptoms,
Based on the record before this court, it is evident that the ALJ considered the factors set forth in the regulations and, consistent with the law of this circuit, articulated good cause for giving Dr. Wilson's opinions little weight: i.e., that Dr. Wilson's opinions were inconsistent with the other medical evidence. Therefore, the ALJ did not err by giving Dr. Wilson's opinions little weight. See Bloodworth, 703 F.2d at 1240 (physician's opinion may be rejected "when the evidence supports a contrary conclusion."). Accordingly, because this court does not reevaluate the evidence, or substitute its judgment for that of the Commissioner, see Martin, 894 F.2d at 1529, the ALJ committed no reversible error.
Next, Hearn contends that the ALJ erred by not considering all of his severe impairments. Doc. 11 at 10-11. Hearn's contention is unavailing because in this circuit, "[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be considered severe," so long as Hearn's impairments were considered in combination at the later steps. Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010). Consistent with the law, the ALJ found Hearn had multiple severe impairments and proceeded to Step Three, where he found there were "insufficient findings . . . to confirm the presence of an impairment or combination of impairments that meet or equal in severity the criteria of a listed impairment." (R. 44). This finding alone is sufficient to establish that the ALJ considered Hearn's impairments in combination. See Jones v. Dep't of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir.1991) (ALJ's finding that claimant did not have "an impairment or combination of impairments listed in, or medically equal to one [in the Listings]" is sufficient to show the impairments were considered in combination) (emphasis in original). Moreover, the ALJ recognized that in assessing Hearn's RFC, he had to "consider all of [Hearn's] impairments, including impairments that are not severe." (R. 30). Finally, the regulations state that the only consequence of the analysis at Step Two is that if the ALJ finds no severe impairment or impairments, he should reach a conclusion of no disability. See C.F.R. § 404.920(c)a)(ii). Accordingly, even assuming that Hearn is correct, the ALJ's failure to identify all of his severe impairments is harmless because it did not, in any way, change the ALJ's decision. See Caldwell v. Barnhart, 261 F. App'x 188, 190 (11th Cir. 2008) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983)).
Hearn next contends that the ALJ did not properly consider Hearn's impairments in combination. Doc. 9 at 15-16. As Hearn correctly notes, when a claimant has several impairments, the Commissioner "has a duty to consider the impairments in combination and to determine whether the combined impairments render the claimant disabled." Jones v. Department of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991). Unfortunately, Hearn does not develop his argument except to assert that
Doc. 9 at 16. Significantly, Hearn does not explain how this combination of conditions limits his ability to work, and "the mere existence of these impairments does not reveal the extent to which they limit [Hearn's] ability to work or undermine the ALJ's determination in that regard." Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005). In other words, Hearn has "simply stat[ed] that an issue exists, without further argument or discussion," which "constitutes abandonment of that issue and precludes . . . considering the issue on appeal." Singh, 561 F.3d at 1278. In any event, there is no error here because the ALJ recognized his obligation to "consider all of [Hearn's] impairments, including impairments that are `not severe'" in assessing his RFC, (R. 30), properly considered Hearn's impairments in combination, and specifically found that "[Hearn] does not have an impairment, or combination of impairments, which meets or equals the criteria of [a listed impairment]." (R. 38). As stated previously, this finding alone is sufficient to establish that the ALJ considered Hearn's impairments in combination. See Jones, 941 F.2d at 1533. Therefore, Hearn's contention is unavailing.
Hearn challenges next the ALJ's finding that Hearn can do medium work. According to Hearn, "[t]here is no evidence that [Hearn] can perform medium work," and the ALJ erred by posing an "hypothetical question [to the VE that] did not include [Hearn's] mental conditions." Doc. 9 at 17. Despite making these contentions, Hearn failed to explain how his mental condition limits his ability to work more than the ALJ provided for in his RFC assessment, or why his physical impairments preclude medium work. This failure dooms Hearn's case, especially since, in response to the ALJ's Pre-Hearing Order, Hearn's counsel indicated that Hearn alleged no exertional limitations. (R. 425); see Street v. Barnhart, 133 F. App'x 621, 627 (11th Cir. 2005) (ALJ is not required to investigate allegations "not presented at the time of the application for benefits and not offered at the hearing as a basis for disability") (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)). Alternatively, Hearn's contentions miss the mark because the ALJ included mental restrictions in his RFC assessment by providing that Hearn "should primarily work with or around things as opposed to the general public," and by limiting him to "simple, repetitive, non-complex tasks." (R. 44). Simply put, Hearn has not met his burden of showing that his mental impairments cause restrictions greater than those found by the ALJ. See 20 C.F.R. § 416.912(c) ("You must provide medical evidence showing that you have an impairment(s) and how severe it is during the time you say that you are disabled."); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) ("[T]he claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.") (citing 20 C.F.R. § 416.912(a), (c)). Accordingly, Hearn has not shown that the hypothetical question to the VE failed to properly account for Hearn's restrictions, and, his contention is without merit.
As his next basis for alleged error, Hearn maintains that the ALJ's decision is not supported by substantial evidence when the evidence he submitted to the Appeals Council is considered.
According to Hearn, the ALJ "relied on VE testimony, which was not based on a correct or full statement of [Hearn's] limitations and impairments." Doc. 9 at 17. Presumably Hearn is maintaining that the records he submitted to the Appeals Council outline his full limitations. In any event, Hearn appears to base this contention, in part, on the ALJ's failure to credit his testimony: "[Hearn] testified regarding his paranoia and the VE concluded that if [Hearn] could not be around people, he would be unable to work." Doc. 9 at18. Unfortunately, Hearn does not explain why the ALJ's credibility finding is not supported by substantial evidence, or cite to any specific evidence submitted to the Appeals Council to support his contention of error. Hearn cannot make such a showing because a review of the ALJ's decision shows that the ALJ properly considered and rejected Hearn's testimony about disabling mental symptoms:
(R. 40). This discussion establishes that, in accordance with the law of this circuit, the ALJ articulated specific reasons for discounting Hearn's testimony of disabling symptoms, and properly considered the conservative and sporadic nature of Hearn's treatment in assessing his credibility. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th. Cir. 2005) (ALJ properly considered gaps in treatment); Falcon v. Heckler, 732 F.2d 827, 832 (11th Cir. 1984) (ALJ properly considered conservative nature of treatment). Significantly, even though the ALJ did not credit Hearn's testimony of disabling symptoms, he recognized that Hearn had some limitations caused by his mental impairments by providing that Hearn "should primarily work with or around things as opposed to the general public" and by limiting him to "simple, repetitive, non-complex tasks." (R. 44). Therefore, the court finds that substantial evidence supports the ALJ's determination that these restrictions account for Hearn's symptoms. Accordingly, because this court does not reweigh the evidence, there is no reversible error in the ALJ's credibility finding.
Moreover, contrary to Hearn's contention, the evidence considered by the Appeals Council does not render the ALJ's credibility finding erroneous. The evidence included additional mental healthcare treatment records prior to Hearn's alleged onset of disability, which showed that Hearn was treated while in jail for a mood disorder and anti-social disorder on July 13, 2007, (R.482-86), and August 1, 2007, (R. 489-90). However, these records are cumulative of treatment records from the same period that the ALJ considered, and show that Hearn was taken to the emergency room with depression and self inflicted wounds to his right wrist on July 5, 2007, (R. 394-399), and August 3, 2007, (R. 380-85). Because the "new" evidence does not show Hearn's condition was worse than reflected in the evidence available to the ALJ, it does not render the ALJ's decision erroneous. Likewise, the treatment records from May and June 2009, (R. 488, 480), which also show Hearn received treatment for a mood disorder, are cumulative of evidence from the same time period that the ALJ reviewed. In a nutshell, the ALJ had evidence before him that showed that Hearn received treatment for a self inflicted superficial cut to his right wrist on May 3, 2009, (R. 426-29, 451-53), for mood swings, depression and poor sleep on May 7, 2009, (R. 430), and for a drug overdose and depression on May 26, 2009, (R. 440-50). In other words, rather than undermining the ALJ's findings, the "new" evidence from May and June 2009 shows Hearn's mood was euthymic, and that he was "really very jovial" on June 5, 2009. In short, the "new" evidence does not render the ALJ's decision erroneous.
Hearn also submitted treatment notes from after his alleged onset date that show he contacted the C.E.D. Mental Health Center by phone on August 3, 2010, seeking treatment, (R. 491-93), and that he underwent an intake evaluation on September 27, 2010, (R. 495-500). The notes also show that although Hearn was scheduled to return for individual therapy on October, 18, 2010, (R. 494), he failed to keep the appointment, (R. 501). When the Center contacted Hearn by phone on October 27, 2010, Hearn's father stated that Hearn no longer wanted to receive treatment, and, as a result, he was discharged from treatment against professional advice. (R. 502-03). As is apparent, this evidence does not undermine the ALJ's decision, which was based in part on Hearn's sporadic mental health treatment history. (R. 40).
Ultimately, based on this record, Hearn has failed to demonstrate that the evidence considered by the Appeals Council shows the ALJ erred in failing to credit Hearn's testimony about his paranoia symptoms. In fact, the evidence from 2010 supports the ALJ's finding that Hearn's sporadic treatment weakened his credibility. Accordingly, the court finds that substantial evidence supports the ALJ's decision even when the Appeals Council evidence is considered.
Hearn's final contention of error is that the Appeals Council inadequately reviewed the new evidence. Doc. 9 at 18. Although the Appeals Council refused to consider much of the evidence Hearn submitted, see supra Part V.A., it accepted a portion of it and made it part of the record, (R. 6). However, the Appeals Council explained that after considering the evidence, it "found that this information does not provide a basis for changing the Administrative Law Judge's decision." (R. 1-2). According to Hearn, "[t]his review is purely conclusory, and it epitomizes `perfunctory adherence' to the ALJ decision," which he contends requires this court to remand the case. Doc. 9 at 20.
To support his contention, Hearn relies on Epps v. Harris, in which the court found that the Appeals Council's failure to adequately evaluate new evidence required a remand:
624 F.2d 1267, 1273 (5th Cir. 1980) (citing Mann v. Gardner, 380 F.2d 182, 187 (5th Cir. 1967).
In contrast, here, the Appeals Council did not enter a decision affirming the ALJ.
Based on the foregoing, the court concludes that the ALJ's determination that Hearn is not disabled is supported by substantial evidence, and that the ALJ applied proper legal standards in reaching this determination. Therefore, the Commissioner's final decision is
