SHARON LOVELACE BLACKBURN, Senior District Judge.
Plaintiff Jonathan Shadwrick brings this action pursuant to 42 U.S.C. § 405(g)
Mr. Shadwrick filed an application for SSI on July 14, 2011, alleging disability beginning on July 7, 2011. (Doc. 8-6 at R.132.)
Mr. Shadwrick then requested review of the ALJ's decision by the Appeals Council. (Id. at R.1.) The Appeals Council "found no reason under [its] rules to review the Administrative Law Judge's decision. Therefore, [it] denied [Mr. Shadwrick's] request for review." (Id.)
Following denial of review by the Appeals Council, Mr. Shadwrick filed an appeal in this court. (See generally doc. 1.)
In reviewing claims brought under the Social Security Act, this court's role is a narrow one: "Our review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cor. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). "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. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936 F.2d at 1145. "No . . . presumption of validity attaches to the [Commissioner's] conclusions of law." Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
The regulations require the Commissioner to follow a five-step sequential evaluation to determine whether a claimant is eligible for SSI. See 20 C.F.R.§ 416.920(a)(1)-(2); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). "The term `disability' means — (A) [the] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 12 months. . . ." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 416(i)(1). The specific steps in the evaluation process are as follows:
First, the Commissioner must determine whether the claimant is engaged in "substantial gainful activity." Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations define "substantial gainful activity" as "work activity that is both substantial and gainful."
The ALJ found that Mr. Shadwrick had not engaged in substantial gainful activity since July 8, 2011. (Doc. 8-3 at R.27.)
If the claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). "[A] `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D). The regulations provide: "[I]f you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience." 20 C.F.R. § 416.920(c). "An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 416.921(a). A claimant may be found disabled based on a combination of impairments even though none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 416.923. A claimant has the burden to show that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Shadwrick "has the following severe impairments: lumbar degenerative disc disease, chronic obstructive pulmonary disease ["COPD"], pancreatitis, depressive disorder with anxiety, panic attacks, alcoholism, polysubstance abuse, and borderline intellectual functioning." (Doc. 8-3 at R.27.)
If the claimant has a severe impairment, the Commissioner must then determine whether the claimant's impairment meets the durational requirement and whether it is equivalent to any one of the listed impairments, which are impairments that are so severe as to prevent an individual with the described impairment from performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant's impairment meets or equals a Listing, the Commissioner must find the claimant disabled, regardless of his age, education, and work experience. 20 C.F.R. § 416.920(d). The claimant has the burden of proving that his impairment meets or equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Shadwrick "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (20 C.F.R. 416.920(d), 416.925 and 416.926)." (Doc. 8-3 at R.27.)
If the impairment does not meet or equal the criteria of a Listing, the claimant must prove that his impairment prevents him from performing his past relevant work. See 20 C.F. R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner "will first compare [her] assessment of [the claimant's] residual functional capacity ["RFC"] with the physical and mental demands of [the claimant's] past relevant work. 20 C.F.R. § 416.960(b). "Past relevant work is work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [him] to learn to do it. 20 C.F.R. § 416.960(b)(1). If the claimant is capable of performing his past relevant work, the Commissioner will find he is not disabled. 20 C.F.R. § 416.920(e). The claimant bears the burden of establishing that the impairment prevents him from performing past work. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found:
(Doc. 8-3 at R.30.) Based on this RFC, the ALJ found that Mr. Shadwrick is unable to perform his past relevant work. (Id. at R.32.)
If the claimant establishes that he is unable to perform his past relevant work, the Commissioner must show that the claimant — in light of his RFC, age, education, and work experience — is capable of performing other work that exists in substantial numbers in the national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. § 416.920(c)(1). The regulations provide:
20 C.F.R. § 416.960(c)(1).
Because the ALJ found Mr. Shadwrick could not perform a full range of light work, he consulted a Vocational Expert [VE] to determine "whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity." (Doc. 8-3 at 33.) The VE testified that an individual with Mr. Shadwrick's limitations and vocational factors could perform the requirements of certain light, unskilled occupations, including inserter, hand bander, and sorter. (Id.) Based on this testimony, the ALJ found Mr. Shadwrick "is capable of making a successful adjustment to other work that exists in significant numbers in the national economy [and a] finding of `not disabled' is therefore appropriate under the framework of the above-cited rules." (Id.)
Mr. Shadwrick alleges the following errors in the ALJ's decision:
(Doc. 11 at 3.)
For the reasons set forth below, the court finds that the Commissioner's decision is due to be affirmed.
Mr. Shadwrick contends that the Appeals Council erred in failing to remand his case based on new evidence.
The Eleventh Circuit has held that "nothing in . . . Epps . . . requires the Appeals Council to provide a detailed discussion of a claimant's new evidence when denying a request for review." Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014). In this case, the Appeals Council denied Mr. Shadwrick's request for review because it "found no reason under [its] rules to review the [ALJ's] decision." (Doc. 8-3 at R.1.) It stated that it had "considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of the Appeals Council;" this evidence included the Medical Interrogatory completed by Dr. John Schosheim dated May 6, 2013. (Id. at R.2, R.6.) These statements by the Appeals Council are sufficient to demonstrate that it considered Mr. Shadwrick's "new" evidence. See Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1262 (11th Cir. 2007).
Moreover, considering all record evidence, including Dr. Schosheim's opinion, the Commissioner's decision to deny Mr. Shadwrick's claim for benefits is not erroneous. See id. at 1266-67. Dr. Schosheim answered a series of questions proposed on a form by Mr. Shadwrick's counsel. His answers are brief, without elaboration, and appear to be based solely on medical records. (See doc. 8-10 at R.461.)
Nothing in the additional evidence submitted to the Appeals Council rendered the ALJ's decision contrary to the weight of the record evidence. The court finds no error in the decision of the Appeals Council to deny review of the ALJ's decision.
Mr. Shadwrick contends, "The ALJ failed to consider the following impairments: low back pain due to L4-5 right paracentral disc protrusion, compressing the proximal L5 nerve root, and L4-S1] foraminal stenosis." (Doc. 11 at 31.) The Eleventh Circuit has held:
Hearn v. Commissioner, Social Sec. Admin., No. 14-15261, 2015 WL 4591811, *2-*3 (11th Cir. July 31, 2015).
In this case, although the ALJ did not list as severe impairments "L4-5 right paracentral disc protrusion . . . and L4-S1 foraminal stenosis," he did find "lumbar degenerative disc disease" as a severe impairment.
Mr. Shadwrick contends, "The record clearly indicates that claimant is suffering from a combination of impairments: pancreatitis, COPD, emphysema, low back pain due to L4-5 right paracentral disc protrusion, compressing the proximal L5 nerve root, L4-S1 foraminal stenosis, borderline intellectual functioning, anxiety, depression, and panic attacks," and the ALJ "failed to consider [his] combination of impairments in determining disability." (Doc. 11 at 32, 34.) Mr. Shadwrick has not developed this argument. See Hearn v. Colvin, Civil Action No. 4:12-CV-3892-AKK, 2014 WL 4809421, *7-*8 (N.D. Ala. Sept. 26, 2014), aff'd Hearn, 2015 WL 4591811.
Hearn v. Colvin, 2014 WL 4809421, *8 (N.D. Ala. 2014).
The court finds that any issue regarding whether the ALJ erred by failing to consider Mr. Shadwrick impairments in combination has been abandoned.
Nevertheless, the court finds the ALJ considered the combination issue, based on his statement that "[t]he claimant does not have an impairment or
David R. Wilson, Ph.D., performed a psychological evaluation on Mr. Shadwrick at the request of his counsel. (See doc. 8-8 at R.325, R.330.) As a result of his evaluation, he determined, inter alia, that Mr. Shadwrick was extremely limited in his ability —
(Doc. 8-8 at R.331-32.) He found Mr. Shadwrick was markedly limited in his ability —
(Id.) The ALJ "accord[ed] little weight to the opinions offered during [the] consultative examination by Dr. Wilson. The extreme limitations noted are inconsistent with the record as a whole, are based largely on claimant report alone, and are directly contradictory to Dr. Bentley and Dr. Estock's assessment." (Doc. 8-3 at R.31-R.32.)
Mr. Shadwrick argues, "The ALJ improperly rejected Dr. Wilson's opinion and substituted his own opinion." (Doc. 11 at 29.) As support for his argument, Mr. Shadwrick discusses a number of cases, but he makes no effort to explain, with reference to the record before the court, how these cases apply to the instant action. The court finds Mr. Shadwrick has not demonstrated any error in the ALJ's findings — that the extreme limitations found by Dr. Wilson are inconsistent with the record as a whole and contradictory to the limitations found by Dr. Bentley and Dr. Estock — or in the weight he accorded the opinion of Dr. Wilson.
For purposes of deciding whether Mr. Shadwrick meets Listings 12.04 and 12.05(C), the court has considered him to be moderately limited in the manner described by Dr. Estock and found by the ALJ.
After setting forth, without discussion, evidence from the record, Mr. Shadwrick contends that he meets Listing 12.04 for Affective Disorders. (Doc. 11 at 25; see id. at 18-25.) In his decision, the ALJ stated:
(Doc. 8-3 at R.28-29.)
In his Memorandum in Support of Disability, Mr. Shadwrick sets forth part of his testimony during the hearing before the ALJ and a summary of treatment records and evaluations. (See doc. 11 at 19-24.) He then states, "The evidence supports a finding of disability under Listing 12.04." (Id. at 24.) Based on his discussion of the evidence and his terse summation that this evidence supports his claim of disability based on this Listing, the court finds that Mr. Shadwrick argues only that the ALJ's decision is not supported by substantial evidence.
Listing 12.04 —
Bellew v. Acting Commissioner of Social Sec., 605 Fed. Appx. 917, 923-24 (11th Cir. 2015)(emphasis added; some internal citations not applicable to Listing 12.04 omitted).
The court has reviewed the entire record and finds that the ALJ's determinations regarding Listing 12.04 are supported by substantial evidence, despite conflicting evidence in the record.
The Psychiatric Review Technique, prepared by psychiatrist Robert Estock, M.D., notes the following with regard to the B Criteria of the Listing 12.04:
(Doc. 8-8 at R.281.) As per the C Criteria, Dr. Estock found the evidence did not establish the presence of the C Criteria.
The ALJ relied on the Function Reports completed by Mr. Shadwrick and Debra Buchanan, his ex-wife's mother and his friend. (Doc. 8-3 at R. 28-29.) According to these Reports Mr. Shadwrick lives alone, (doc. 8-7 at R.155, R.163); he has no problems with his personal care, (id. at R.156, R.164); he makes his own meals, (id. at R.157, R.165); he shops for groceries and household goods about once a week, (id. at R.158, R.166); he has visitors, (id. at R.159, R.167); sees his young daughters, (id. at R.159); and he does not have problems getting along with family, friends, or neighbors, (id. at R. 160). Mr. Shadwrick and Ms. Buchanan both indicated that his "illnesses, injuries, or conditions" did not affect his memory, concentration, understanding, following instructions, and/or getting along with others. (Id. at R.160, 168.) Ms. Buchanan said he "has no problem" paying attention and that he follows spoken instructions "well," gets along "well" with authority figures. (Id. at R.160-61.) She noted that he has panic attacks when he cannot breathe. (Id. at R.161.) Mr. Shadwrick said that he had "worked until [he] could not breathe." (Id. at R.164.) He also noted that he had panic attacks when he could not breathe. (Id. at R.169; see also id. at R.187.)
The ALJ also relied on a consultative examination performed by Jack L. Bentley, Jr., Ph.D. (Doc. 8-3 at R.29.) He noted that Mr. Shadwrick "failed to perform serial 7s and 3s upon examination. However, he was able to complete other relevant tasks upon examination such as counting backwards and recall[ing] information." (Id. [citing doc, 8-8 at R.269].)
Based on this evidence the ALJ found that Mr. Shadwrick did not meet Listing 12.04. because did not meet the B or C criteria. Mr. Shadwrick has failed to show that this finding is not supported by substantial evidence.
Mr. Shadwrick contends that he meets Listing 12.05(C). (Doc. 11 at 27.) The ALJ found:
(Doc. 8-3 at R.29-30 [emphasis and footnote added].)
"The structure of the listing for intellectual disability (12.05) is different from that of the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the diagnostic description for intellectual disability. It also contains four sets of criteria (paragraphs A through D). If [a claimant's] impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, [the Commissioner] will find that [the claimant's] impairment meets the listing." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A); see also Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th Cir. 1997). The introductory paragraph of Listing 12.05 states, "Intellectual disability refers to significantly subaverage general intellectual functioning
The regulations do not define "deficits in adaptive functioning" as used in Listing 12.05. However, "the Diagnostic and Statistical Manual of Mental Disorders (`DSM') states that adaptive functioning `refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociological background, and community setting.'" O'Neal v. Commissioner of Social Sec., No. 14-14011, 2015 WL 3605682, *3 (11th Cir. June 10, 2015)(quoting DSM-IV-TR at 42). In a different context, the Fifth Circuit has noted:
Henderson v. Stephens, 791 F.3d 567, 580 (5th Cir. 2015).
The court need not dwell on the proper meaning of deficits in adaptive functioning because Mr. Shadwrick does not argue that the ALJ's finding in this regard was error.
In his brief, Mr. Shadwrick notes:
(Doc. 11 at 26-27 [footnote added].) This evidence, however, does not rebut the ALJ's findings that Mr. Shadwrick "does not suffer from deficits in adaptive functioning," and that he "has never been diagnosed with mental retardation." (Doc. 8-3 at R.29.) In his Reply Brief, Mr. Shadwrick argues, "The ALJ in this case did not make sufficient findings to substantiate the invalidity of the IQ score of 70." (Doc. 13 at 3.) However, the ALJ did not find the IQ score was invalid. Indeed, he seems to have assumed a valid score, stating, "Despite the Full Scale IQ score of 70 that was recorded, the claimant has never been diagnosed with mental retardation as neither of the consultative psychological examiners found the claimant to have significant deficits in adaptive functioning."
The evidence recited in Mr. Shadwrick's briefs may indicate that he has functional intellectual limitations. However, the evidence does not rebut the ALJ's finding that he does not suffer from significant deficits in adaptive functioning, especially in light of his ability too live independently. "Even if the evidence preponderates against the [Commissioner]'s factual findings, we must affirm if the decision reached is supported by substantial evidence." Parks ex rel. D.P. v. Commissioner, Social Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015)(citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Mr. Shadwrick has not demonstrated the ALJ erred in finding he did not meet Listing 12.05(C) based on a failure to show significant deficits in adaptive functioning.
Mr. Shadwrick contends, "The ALJ failed to state adequate reasons for finding claimant not credible." (Doc. 11 at 34.) Without argument or explanation, he contends, "The `reasons' set out in the body of the decision by the ALJ are not adequate reasons for finding Claimant not credible." (Id. at 39.)
The court finds that Mr. Shadwrick has abandoned this issue. See Singh, 561 F.3d at 1278. He has merely quoted selective portions of the record and cited case law without any attempt to formulate an argument. This is insufficient to allow this court to review the issue on appeal.
Nevertheless, considering the issue, the court finds the ALJ's decision regarding Mr. Shadwrick's credibility is supported by substantial evidence and is in accordance with the proper legal standards. The Eleventh Circuit has "held that credibility determinations are the province of the ALJ, Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), and [it] will not disturb a clearly articulated credibility finding supported by substantial evidence, Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)." Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). In this case, the ALJ "clearly articulated" his reasons for discrediting Mr. Shadwrick's subjective complaints to the extent such complaints were inconsistent with his RFC. (See doc. 8-3 at 31.) These reasons are supported by substantial evidence.
Therefore, the court will not disturb these findings.
"The RFC is an assessment, based on all relevant medical and other evidence, of a claimant's remaining ability to work despite his impairment(s)." Brown v. Colvin, No. 4:14-CV-1916-VEH, 2015 WL 2381077, *3 (N.D. Ala. May 19, 2015)(citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 416.945(a)). However, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision . . . is not a broad rejection which is `not enough to enable [the district court or this Court] to conclude that [the ALJ] considered [the claimant's] condition as a whole.'" Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)(quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)(internal quotation omitted)).
Mr. Shadwrick contends that the ALJ "failed to follow SSR 96-8p." (Doc. 11 at 42.) Citing a Physical Residual Functional Capacity Assessment prepared by an agency physician, and not the ALJ, he contends that the ALJ's "RFC assessment is simply conclusory and does not contain any rationale or reference to the supporting evidence as required by SSR 96-8p." (Id. at 41 [citing doc. 8-8 at 285-292].) The court disagrees.
The ALJ stated that his RFC finding was based on his consideration of "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence." (Doc. 8-3 at R.30.) "[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision . . . is not a broad rejection which is not enough to enable the district court or [the Eleventh Circuit] to conclude that [the ALJ] considered [his] medical condition as a whole." Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)(quoting Foote, 67 F.3d at 1561)(internal quotations omitted). Clearly, merely reading the ALJ's Decision leads to the inevitable conclusion that the ALJ considered all of Mr. Shadwrick's alleged limitations, he discussed the evidence, and he adequately stated his rationale. (Doc. 8-3 at R.30-32 [citing, inter alia, doc. 8-8 at 255, 267-70, 283, 285-95, 317, 321, 339, 341; doc. 8-9 at 360, 375; doc. 8-10 at 447]; see also doc. 8-3 at R.54-55.) The court finds no reason to disturb the ALJ's finding regarding Mr. Shadwrick's RFC, which is supported by substantial evidence.
Mr. Shadwrick contends, "The ALJ has relied on VE testimony, which was not based on a correct or full statement of claimant's limitations and impairments." (Doc. 11 at 39.) This argument is grounded on claimant's contentions that the ALJ erred in assessing his credibility and determining his RFC. For the reasons set forth above, the court finds that these findings of the ALJ will not be disturbed on appeal. Thus, the court finds no error in the ALJ's reliance on the VE's testimony, which was based on the RFC and vocational factors the ALJ had determined, to find Mr. Shadwrick was not disabled.
For the reasons set forth above, the decision of the Commissioner is due to be affirmed. An Order affirming the decision of the Commissioner will be entered contemporaneously with this Memorandum Opinion.
20 C.F.R. § 416.972.
(Doc. 11 at 28 [emphasis added].) This portion of Mr. Shadwrick's Memorandum was obviously copied from an earlier document prepared by counsel. Counsel is encouraged to carefully review all documents filed before the court.
(Doc. 8-10 at 461.) Dr. Schosheim's response merely recounts diagnoses made by other healthcare providers. He cites no "objective medical findings" to support his diagnoses of these same mental impairments.