GREGORY J. KELLY, District Judge.
Patrick Louis Querec (the "Claimant"), appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB"). Doc. No. 1; R. 176-177. Claimant alleges an onset of disability as of August 1, 2011, primarily due to degenerative disc disease, pain, muscle spasms in left lower extremity, non-Hodgkin's lymphoma, hypertension, arthritis, sleep apnea, hyperlipidemia, and insomnia. R. 78-79. Claimant argues that the Administrative Law Judge (the "ALJ") erred by: 1) finding his disorder of the spine does not meet or equal Listing 1.04; and 2) failing to consider the testimony of the vocational expert (the "VE") at step-four that an individual who is unable to pass a mandatory drug test due to prescribed narcotic medication would not be hired for Claimant's past-relevant work as a section chief. Doc. No. 34 at 14-16, 19-23, 34-36.
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520(a). In Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001), the Eleventh Circuit explained the five-step sequential evaluation process as follows:
Id. at 1278 (citations omitted). The steps are followed in order. If it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The District Court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'" See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Claimant argues that the ALJ erred at step-three of the sequential evaluation process by failing to find that Claimant's impairments, singly or in combination, meet or medically equal the severity requirements of Listing 1.04 Disorders of the Spine. Doc. No. 34 at 14-16. Claimant maintains that the ALJ ignored evidence in the record, which meets the criteria for Listing 1.04. Id. at 16. The Commissioner argues that the Claimant failed to meet his burden to demonstrate that his impairments met or equaled the requirements of Listing 1.04. Doc. No. 34 at 17-19. The Commissioner maintains that the evidence Claimant cites to regarding nerve root compression is dated prior to Claimant's alleged onset date and that recent objective studies and treatment notes, which occurred during the relevant period, do not meet or equal the Listing. Doc. No. 34 at 18. Moreover, the Commissioner asserts that the record fails to show positive straight leg raising test, which is a requirement under Listing 1.04A. Doc. No. 34 at 19. Thus, the Commissioner maintains that the Claimant failed to meet his burden at step-three and, therefore, the ALJ's decision is supported by substantial evidence. Doc. No. 34 at 19.
At step-three of the sequential evaluation process, the ALJ must consider whether a claimant's impairments, individually or in combination, meet or equal any of the Listing under 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii). By meeting a listed impairment or otherwise establishing an equivalence, a claimant is presumptively determined to be disabled regardless of his or her age, education, or work experience. 20 C.F.R. § 404.1520(d); Sullivan v. Zebley, 493 U.S. 521, 532 (1990). A claimant is entitled to an award of benefits if the claimant can demonstrate that his or her limitations meet, or are medically or functionally equal to the limitations set forth in the particular listing contained in Appendix 1. See Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d 1276, 1282 (11th Cir. 2004).
The claimant bears the burden of demonstrating that his or her impairments meet or functionally equal a listed impairment, and the claimant must come forth with evidence of the medical signs, symptoms, and/or objective testing that meet all of the listing's respective requirements. See Zebley, 49 U.S. at 530. "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. Moreover, at step-three, "[w]hile Appendix 1 must be considered in making a disability determination, [the ALJ] is not required [to] mechanically recite the evidence leading to [his or her] determination" and, therefore, an ALJ's finding that a claimant does not meet a particular listing may be implicit in the ALJ's decision. Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986).
Listing 1.04 for Disorders of the Spine provides the following criteria:
20 C.F.R. Pt. 404, Subpt. P. App. 1. Thus, in order to meet Listing 1.04, a claimant must come forth with evidence supporting all the criteria contained in 1.04A, 1.04B, or 1.04C. For example, with respect to Listing 1.04A, a claimant must demonstrate that he or she has a recognized disorder of the spine, which results "in compromise of a nerve root . . . or the spinal cord" with "[e]vidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." Id. (emphasis added).
In the decision, at step-two, the ALJ found that Claimant has the following severe impairments: "L4-5 status-post surgery, L5-S1 status-post surgery, mild facet arthropathy bilaterally that resulted in mild foraminal narrowing, L3-4 disc desiccation and mild facet arthropathy that resulted in mild foraminal narrowing bilaterally, and polyneuropathy." R. 16. At step-two, the ALJ provides a good review of the medical record related to Claimant's degenerative disc disease and polyneuropathy from the Claimant's alleged onset date — August 1, 2011, through the March 13, 2013. R. 16-18. See also R. 1042-1043, 1078, 1091-1096, 1098, 1101-1102, 1108, 1111-1116, 1122, 1124-1140, 1143, 1146-1148, 1150, 1152-1153, 1155-1156, 1162-1163, 1220-1228, 1232-1233, 1242-1247, 1249, 1275-1276 (medical record addressed by ALJ). Generally, the ALJ's review of the medical record at step-two shows that while Claimant's back impairments and neuropathy are severe with chronic pain, radiculopathy, and some loss of sensation in Claimant's lower left extremity, the Claimant's physical examinations are largely benign; with no positive straight leg tests during the relevant period, only one finding of antalgic gait (R. 1249), which resolved by the following appointment (R. 1246-1247), and no objective tests indicating nerve root compression or stenosis (R. 1232-33, 1242-43). R. 16-18. See also R. 1042-1043, 1078, 1091-1096, 1098, 1101-1102, 1108, 1111-1116, 1122, 1124-1140, 1143, 1146-1148, 1150, 1152-1153, 1155-1156, 1162-1163, 1220-1228, 1232-1233, 1242-1247, 1249, 1275-1276.
At step-three, the ALJ specifically considered whether Claimant met the criteria for Listing 1.04. See R. 20. The ALJ found that: "The claimant has L4-5 status-post surgery, L5-S1 status-post surgery, mild facet arthropathy bilaterally that resulted in mild foraminal narrowing bilaterally, and polyneuropathy, but is not degenerative in nature as to meet or equal 1.04." R. 20. Substantial evidence supports the ALJ's finding (see supra p. 6) and the Court finds that the Claimant has failed to come forth with evidence in the record demonstrating that the Claimant meets each of the criteria in Listing 1.04A, 1.04B, or 1.04C. Accordingly, the Claimant has failed to meet his burden at step-three and the Claimant's argument is rejected.
Claimant argues that the ALJ erred at step-four by determining that the Claimant could perform his past-relevant work as a section chief when the ALJ failed to consider the testimony of the VE. Doc. No. 34 at 19-23. More specifically, Claimant argues that the ALJ erred by failing to consider the VE's testimony that an individual, who was taking high levels of narcotic pain medication due to his impairment, could not pass a mandatory drug test and could not be hired for the position of section chief. Doc. No. 34 at 23.
Throughout the relevant time period, Claimant has been prescribed Percocet, morphine sulfate and Oxycodone, with Oxycodone and Percocet to be taken in conjunction with each other as many as three times per day. See R. 1051, 1054, 1077, 1091, 1093-1095, 1097-1098, 1101, 1105, 1107-1108, 1110, 1112, 1128, 1131, 1144, 1148, 1153, 1161, 1197, 1200-1201, 1203, 1206, 1209, 1211, 1214, 1216, 1218, 1220, 1224-1225, 1248, 1273-1274.
At the hearing, after the VE testified that a hypothetical individual with Claimant's age, education, and residual functional capacity assessment ("RFC") could perform Claimant's past-relevant work as a section chief (R. 73-74), the following exchange occurred between the VE and Claimant's attorney:
R. 75. Thus, the VE testified that there would generally be a drug test performed for work as a section chief and an individual taking a high-level narcotic medication would not be hired. R. 75.
In the decision, the ALJ finds, at step-four, that Claimant is capable of performing his past-relevant work as section chief as that work is generally performed in the national economy. R. 25. The ALJ states:
R. 25-26. Based upon the above-stated findings at step-four, the ALJ finds that the Claimant is not disabled. R. 26. However, at no point does the ALJ address the VE's testimony set forth above, which indicates that drug testing would be required for the job of section chief and an individual, like the Claimant, who was taking a high-level narcotic, would not be hired. R. 25-26.
The Court has not been able to find, and the parties have not provided, an Eleventh Circuit opinion addressing whether an ALJ is required to consider a claimant's ability to pass a drug test at step-four. In Berry v. Astrue, 622 F.3d 1228, 1230-34 (9th Cir. 2010), the Ninth Circuit held that the ALJ there erred by concluding that Berry's ability to pass a drug test as a mandatory condition of his past-relevant work was irrelevant to the disability determination. Id. at 1230.
Berry's past-relevant work was as a courier driver. Id. at 1230. At the hearing, Berry argued that he could not perform that work because he could not pass the mandatory drug testing requirement due to his prescribed pain medication. Id. The ALJ noted that drug testing was not listed a requirement for the job in the Dictionary of Occupational Titles and, therefore, the ALJ refused to permit Berry to introduce evidence that drug testing was a mandatory condition of the job, finding it irrelevant to the ALJ's analysis. Id. "Nor did the ALJ consider whether, if such a requirement exists, Berry was physically capable of meeting it." Id.
The Ninth Circuit held:
Berry, 622 F.3d at 1232. Thus, the Ninth Circuit found that if a claimant can offer proof that a mandatory drug testing requirement exists and that the claimant would be physically unable to pass said test due to his prescribed medication regimen, then that drug testing requirement is "in essence a physical demand of the job," which the ALJ may not ignore. Id.
The Ninth Circuit continued:
Berry, 622 F.3d at 1232 (emphasis added). Thus, the Court noted that while 42 U.S.C. § 423(d)(2)(A) excludes consideration of whether a claimant would actually be hired for a particular job, that statutory provision "cannot be construed to include a hiring practice that is directly tied to the claimant's disability." Berry, 622 F.3d at 1232.
In this case, Claimant takes multiple narcotic medications, multiple times, on a daily basis. See supra p. 7. The VE testified that employers would require drug testing for Claimant's past-relevant work as a section chief. R. 75. The VE further testified that an individual, who could not pass said test, would not be hired. R. 75. Thus, there is evidence in the record that drug testing is required for Claimant's past-relevant work, he takes medications that would likely cause him to fail a drug test and, therefore, he cannot perform his past-relevant work. The parties have not referenced any other record evidence bearing on that issue. However, the ALJ failed to address the evidence described above. R. 25-26.
At step-four, while the VE testified that a hypothetical individual with Claimant's residual functional capacity assessment, age, education, and vocational profile could perform Claimant's past-relevant work as a section chief (R. 73), the VE also testified that an individual, like Claimant, would be required to pass a drug test and would not be hired if they were prescribed a high-level narcotic. R. 74-75. Thus, the VE's testimony establishes a conflict in the evidence at step-four. It is the ALJ's responsibility, not the Court's, to resolve conflicts in the evidence. See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); King v. Comm'r of Soc. Sec., No. 8:10-cv-2390-T-27EAJ, 2012 WL 243382, at *14 (M.D. Fla. Jan. 6, 2012) report and recommendation adopted King v. Comm'r of Soc. Sec., No. 8:10-cv-2930-T-27EAJ, 2012 WL 243567, at *1 (M.D. Fla. Jan. 25, 2010) Here, the ALJ's decision fails to address how the ALJ resolved the above-stated conflict at step-four. R. 25-26. The Court is persuaded by Berry and finds that without addressing the above-stated evidence, the ALJ's finding at step-four is not supported by substantial evidence. Accordingly, the case must be
For the reasons stated above, it is
