KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Veronica Richardson brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
Richardson filed the subject applications for a period of disability, DIB, and SSI with the Social Security Administration ("SSA") on September 9, 2015. After they were initially denied, Richardson requested a hearing before an Administrative Law Judge ("ALJ") with the SSA's Office of Disability Adjudication and Review. A hearing was held on May 2, 2017; on October 31, 2017, the ALJ issued an unfavorable decision on Richardson's applications, finding her not disabled under the Social Security Act and thus not entitled to benefits. (See Doc. 12, PageID.52-62).
The Commissioner's decision on Richardson's applications became final when the Appeals Council for the Office of Disability Adjudication and Review denied her request for review of the ALJ's decision on September 12, 2018. (See Doc. 12, PageID.46-50). Richardson subsequently brought this action under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision. See 42 U.S.C. § 1383(c)(3) ("The final determination of the Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."); 42 U.S.C. § 405(g) ("Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow."); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) ("The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council.").
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is `"supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion."'" Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). In reviewing the Commissioner's factual findings, the Court "`may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].'" Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). "`Even if the evidence preponderates against the [Commissioner]'s factual findings, [the Court] must affirm if the decision reached is supported by substantial evidence.'" Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Put another way, "[u]nder the substantial evidence standard, we cannot look at the evidence presented to [an administrative agency] to determine if interpretations of the evidence other than that made by the [agency] are possible. Rather, we review the evidence that was presented to determine if the findings made by the [agency] were unreasonable. To that end, [judicial] inquiry is highly deferential and we consider only whether there is substantial evidence for the findings made by the [agency], not whether there is substantial evidence for some other finding that could have been, but was not, made. That is, even if the evidence could support multiple conclusions, we must affirm the agency's decision unless there is no reasonable basis for that decision." Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) (citations and quotation omitted).
"Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The Court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]" Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) ("We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts."). "In determining whether substantial evidence exists, [a court] must...tak[e] into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). See also McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) ("We are constrained to conclude that the administrative agency here...reached the result that it did by focusing upon one aspect of the evidence and ignoring other parts of the record. In such circumstances we cannot properly find that the administrative decision is supported by substantial evidence. It is not enough to discover a piece of evidence which supports that decision, but to disregard other contrary evidence. The review must take into account and evaluate the record as a whole.").
Moreover, the "substantial evidence" "standard of review applies only to findings of fact. No similar presumption of validity attaches to the [Commissioner]'s conclusions of law, including determination of the proper standards to be applied in reviewing claims." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) ("Our standard of review for appeals from the administrative denials of Social Security benefits dictates that `(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....' 42 U.S.C.A. s 405(g) ... As is plain from the statutory language, this deferential standard of review is applicable only to findings of fact made by the Secretary, and it is well established that no similar presumption of validity attaches to the Secretary's conclusions of law, including determination of the proper standards to be applied in reviewing claims." (some quotation marks omitted)). This Court "conduct[s] `an exacting examination' of these factors." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). "`The [Commissioner]'s failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.'" Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In sum, courts "review the Commissioner's factual findings with deference and the Commissioner's legal conclusions with close scrutiny." Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) ("In Social Security appeals, we review de novo the legal principles upon which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to determine whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004).").
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. 2015) (per curiam) (unpublished).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips, 357 F.3d at 1237-39).
"These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work." Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). "In determining whether the claimant has satisfied this initial burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education, and work history." Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). "These factors must be considered both singly and in combination. Presence or absence of a single factor is not, in itself, conclusive." Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves that he or she has a qualifying disability and cannot do his or her past relevant work, it then becomes the Commissioner's burden, at Step Five, to prove that the claimant is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, although the "claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record." Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) ("It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." (citations omitted)). "This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole." Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted).
When the ALJ denies benefits and the Appeals Council denies review of that decision, the Court "review[s] the ALJ's decision as the Commissioner's final decision." Doughty, 245 F.3d at 1278. But "when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous." Ingram, 496 F.3d at 1262. Nevertheless, "when the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
At Step One, the ALJ determined that Richardson met the applicable insured status requirements through December 31, 2019, and that she had not engaged in substantial gainful activity since the alleged disability onset date of August 13, 2015.
At Step Four,
Based on the RFC and the testimony of a vocational expert,
Richardson first argues that the ALJ reversibly erred by not obtaining a medical expert's opinion on the issue of whether her impairments medically equaled a Listing at Step Three. The undersigned finds no reversible error.
In making this argument, Richardson relies on 20 C.F.R. §§ 404.1526(c) and 416.926(c), and Social Security Ruling (SSR) 96-6p, 1996 WL 374180 (July 2, 1996).
20 C.F.R. §§ 404.1526(c), 416.926(c). The Commissioner argues that those "regulations merely explain that, when evaluating medical equivalence, `we consider all evidence in your case record about your impairment,' including a medical or psychological consultant's opinion if one is in the record[,] and that "[t]he regulations do not, as Plaintiff asserts, state that the ALJ must obtain a medical consultant opinion if one is not in the record." (Doc. 18, PageID.788). The undersigned finds that, at the very least, §§ 404.1526(c) and 416.926(c) are ambiguous as to whether the provision "[w]e also consider the opinion given by one or more medical or psychological consultants designated by the Commissioner" requires the record to contain such an opinion, or merely requires the Commissioner to consider such opinions if they are properly submitted into the administrative record.
SSR 96-6p resolved this ambiguity in favor of the former position, stating in relevant part:
SSR 96-6p, 1996 WL 374180, at *3. Richardson asserts that the administrative record here is devoid of any opinion by a medical consultant on the issue of medical equivalency. She argues the ALJ could not rely on the State agency's disability determinations on her applications as the required opinion evidence because those forms were prepared by a Single Decision Maker (SDM), a designation that "connotes no medical credentials." Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871 (11th Cir. 2012) (per curiam) (unpublished) (citing 20 C.F.R. § 404.906(a), (b)(2)).
The Commissioner does not argue that there is a valid opinion on medical equivalency in the record. However, the Commissioner does point out, correctly, that SSR 96-6p was rescinded and replaced by SSR 17-2p effective March 27, 2017, before the ALJ's decision on Richardson's applications was issued on October 31, 2017. See SSR 17-2p, 2017 WL 3928306, at *1 (with an effective date of March 27, 2017, "[t]his Social Security Ruling (SSR) rescinds and replaces SSR 96-6p"). Moreover, contrary to SSR 96-6p, SSR 17-2p states: "If an adjudicator at the hearings or AC level believes that the evidence does not reasonably support a finding that the individual's impairment(s) medically equals a listed impairment, we do not require the adjudicator to obtain ME evidence or medical support staff input prior to making a step 3 finding that the individual's impairment(s) does not medically equal a listed impairment." SSR 17-2p, 2017 WL 3928306, at *4. Undeterred, Richardson argues that SSR 96-6p should still apply to her applications because they were filed before the effective date of SSR 17-2p.
Given its effective date, SSR 17-2p appears to have been issued as part of the SSA's substantial revisions of its rules regarding the evaluation of medical evidence, which were published on January 18, 2017, and became effective March 27, 2017. HALLEX I-5-3-30(I) (SSA), 2017 WL 1362776, at *1. "[M]any of the most significant changes for evaluating evidence w[ere to] apply only in claims filed on or after March 27, 2017[,]" and the SSA offered the following guidance for determining if a rule was meant to apply to applications filed on or after the effective date:
HALLEX I-5-3-30(IV), 2017 WL 1362776, at *2. However, not all of the revised rules are dependent on a claim's filing date, as the SSA intended that "some of the revised rules apply in all claims..." Id.
SSR 17-2p does not contain the above-noted language, or indeed any language at all, indicating that it was meant to apply only to claims filed on or after its effective date, and Richardson has cited no authority indicating otherwise.
Finally, Richardson asserts that, even if SSR 17-2p applies to her applications instead of SSR 96-6p, SSR 17-2p is inconsistent with Wilkinson on Behalf of Wilkinson v. Bowen, 847 F.2d 660 (11th Cir. 1987) (per curiam), which predates SSR 96-6p and cites a prior version of §§ 404.1526(c) and 416.926(c) in twice stating that, "when deciding medical equivalence, the Secretary must consider the medical opinion of one or more designated physicians on an advisory basis." 847 F.2d at 662-63 (citing 20 C.F.R. § 416.926(b)). While this statement from Wilkinson is certainly consistent with SSR 96-6p's interpretation of §§ 404.1526(c) and 416.926(c), the undersigned nevertheless concludes that it does not fatally conflict with SSR 17-2p because it is dicta. "This is crucial because, whatever their opinions say, judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced. Statements in an opinion that are not fitted to the facts, or that extend further than the facts of that case, or that are not necessary to the decision of an appeal given the facts and circumstances of the case, are dicta." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (citations and quotations omitted). "And dicta is not binding on anyone for any purpose." Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010).
The above-mentioned statement from Wilkinson was not necessary to the resolution of the issues in that case in either instance in which it was written. The statement first appears in Wilkinson as part of a general recitation of Step Three procedures, see 847 F.2d at 662; the Eleventh Circuit has already held that another statement from the same paragraph in Wilkinson "was dicta, provided merely for background." Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d 1276, 1285 (11th Cir. 2004). Moreover, "[t]he only issue in Wilkinson was whether the medical evidence offered by the applicant was sufficient to demonstrate that the applicant suffered from particular limitations specified in the Listings." Id. In pressing this issue, the plaintiff in Wilkinson argued that "the ALJ improperly relied on a `paper' medical advisor to make this determination[;]" the Eleventh Circuit disagreed, holding that "the ALJ could rely on the opinion of" the medical advisor and repeating the observation that "[w]hen deciding medical equivalence, the Secretary must consider the medical opinion of one or more designated physicians on an advisory basis." 847 F.2d at 663. Given that the specific issue in Wilkinson was whether the ALJ
Accordingly, the undersigned concludes that SSR 17-2p applied to Richardson's applications at the time of the ALJ's decision, and therefore the ALJ was not required to obtain an opinion from a medical expert before making a determination on the issue of medical equivalence at Step Three.
"[O]besity is not a listed impairment, but the ALJ is required to consider obesity in the analysis of a claimant's overall medical condition. Social Security Regulation 02-1p provides that obesity shall be considered when determining if (1) a claimant has a medically determinable impairment, (2) the impairment is severe, (3) the impairment meets or equals the requirements of a listed impairment, and (4) the impairment bars claimant from doing past relevant work and other work that exists in significant numbers in the national economy." Lewis v. Comm'r of Soc. Sec., 487 F. App'x 481, 483 (11th Cir. 2012) (per curiam) (unpublished) (citation and quotation omitted). "The SSA has acknowledged that `[o]besity can cause limitation of function ... in any of the exertional functions such as sitting, standing, walking, lifting, carrying, pushing, and pulling." 67 Fed.Reg. 57859 (Sept. 12, 2002). Accordingly, under SSR 02-1P, an RFC assessment should take account `of the effect obesity has upon the individual's ability to perform routine movement and necessary physical activity within the work environment.' Id." Solomon v. Comm'r, Soc. Sec. Admin., 532 F. App'x 837, 840-41 (11th Cir. 2013) (per curiam) (unpublished).
Richardson next argues that the ALJ failed to evaluate the effects of her obesity in accordance with SSR 02-1p. Relatedly, she also argues that the ALJ's failure to consider her obesity means the RFC is not supported by substantial evidence. While true that the ALJ did not specifically mention obesity in her decision, the undersigned agrees with the Commissioner that any failure to do so was harmless. The ALJ's decision reflects an adequate consideration of the record evidence, and the record as a whole does not indicate that Richardson's obesity warranted any further limitations than what the ALJ already assigned.
At Step Three, the ALJ specifically found that Richardson did not meet Listing 1.03 "because she returned to effective ambulation within 12 months of onset" (Doc. 12, PageID.58), thus indicating that Richardson's obesity did not affect her ability to ambulate to a disabling degree. At Step Four, the ALJ discussed medical records documenting an overall improvement in Richardson's ability following her hip replacement surgeries on August 14 and November 14, 2015. (See id., PageID.59-60). Records from the latest post-surgery follow-up visit, on February 7, 2017, noted that Richardson complained of some bilateral lower extremity swell, but that otherwise she was "doing well[,] had no pain in her hips and got around pretty well[, and] only had some issues with putting her socks on." (Id., PageID.60). Richardson also had "good active range of motion of both hips with flexion and internal and external rotation of the hips[,] was neurovascularly intact[, had] satisfactory alignment of both hip prostheses[, with] no periprosthetic fracture." (Id.). Richardson has pointed to nothing indicating that her obesity caused her to be any more limited than what the ALJ already determined from the evidence of record. See Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (per curiam) ("Although Skarbek did not specifically claim obesity as an impairment (either in his disability application or at his hearing), the references to his weight in his medical records were likely sufficient to alert the ALJ to the impairment. Despite this, any remand for explicit consideration of Skarbek's obesity would not affect the outcome of this case. Notably, Skarbek does not specify how his obesity further impaired his ability to work, but speculates merely that his weight makes it more difficult to stand and walk. Additionally, the ALJ adopted the limitations suggested by the specialists and reviewing doctors, who were aware of Skarbek's obesity. Thus, although the ALJ did not explicitly consider Skarbek's obesity, it was factored indirectly into the ALJ's decision as part of the doctors' opinions." (citations omitted)).
Finally, Richardson asserts that the ALJ did not adequately account for her complaints of pain, but this argument fails for largely the same reasons as her obesity argument, as the objective medical evidence of record reflects that her pain significantly improved following her hip surgeries, with the February 7, 2017 follow-up visit noting "no pain in her hips" and "good active range of motion of both hips with flexion and internal and external rotation of the hips[,]" with only "some bilateral lower extremity swelling..." (Doc. 12, PageID.762). The ALJ also found that Richardson's subjective complaints regarding the intensity, persistence, and limiting effects of her pain were "not entirely consistent with the medical evidence and other evidence in the record" and thus did not support imposing any additional limitations (see id., PageID.59), and a "clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam).
In sum, Richardson has failed to show reversible error by the ALJ. Accordingly, the Court finds that the Commissioner's final decision denying Richardson's applications is due to be
In accordance with the foregoing analysis, it is
Final judgment shall issue separately in accordance with this order and Federal Rule of Civil Procedure 58.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1361 (11th Cir. 2018) (footnote omitted).
