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Kelly v. Colvin

United States District Court, N.D. Florida, Pensacola Division

February 1, 2017

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a final determination of the Commissioner of Social Security (“Commissioner”) denying Michele Nicole Kelly's applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381-83. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 for all proceedings in the case, including entry of final judgment. Upon review of the record before the court, I conclude the findings of fact and determinations of the Commissioner are supported by substantial evidence. The decision of the Commissioner, therefore, will be affirmed and both applications for benefits will be denied.


         Ms. Kelly, who will be referred to as claimant, plaintiff, or by name, raises one issue on appeal, arguing the ALJ erred in giving little weight to the opinion of her treating physician, Dr. Adam Tarnosky, and treating psychiatrist, Dr. Annie Cherian, and giving great weight to the opinions of state agency consultants, Dr. Robert Hodes and Dr. Patrick Peterson.


         Ms. Kelly filed her applications for DIB and SSI on February 23, 2012, alleging disability beginning August 25, 2011.[1] T. 49.[2] Her claims were denied initially and on reconsideration. T. 170-92. After filing a request for a hearing, Ms. Kelly appeared before an Administrative Law Judge (“ALJ”) on February 25, 2014. T. 46-88. On May 22, 2014, the ALJ issued a decision denying her claims for benefits. T. 23-40. Ms. Kelly petitioned the Appeals Council for review of the ALJ's decision. T. 15. The Appeals Council denied her request; as a result, the ALJ's decision became the final determination of the Commissioner. T. 1-5.


         In her written decision, the ALJ made a number of findings relevant to the issues raised in this appeal:

• “The claimant has the following severe impairments: history of seizures, migraine headaches, lumbar radiculopathy, left hip bursitis, osteoarthritis, asthma, history of gastroparesis, obesity, depression, bipolar disorder, anxiety, and history of alcohol abuse, not material and in remission (20 CFR 404.1520(c) and 416.920(c)).” T. 25.
• Ms. Kelly has the residual functional capacity to perform less than light work, as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift and carry 10 pounds frequently and 20 pounds occasionally and sit for a total of 6 hours and stand and walk for a total of 4 hours each during an 8-hour workday. She can frequently use her upper and lower extremities to push and pull; she also can frequently balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. She cannot climb ladders, ropes, or scaffolds. She can frequently reach overhead and continuously handle, finger, and feel, but she must avoid exposure to extreme heat or cold and pulmonary irritants. She cannot work around unprotected heights or dangerous machinery and, because of her history of seizures, she should not drive or work around large bodies of water or open flames. She is limited to simple routine tasks involving no more than simple, short instructions, as well as jobs with simple work related decisions and few workplace changes. She can interact with the general public only occasionally, but can sustain concentration and attention for two-hour periods. T. 28.
• “The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).” T. 38.
• “Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).” T. 38.
• “The claimant has not been under a disability, as defined in the Social Security Act, from August 24, 2011, through the date of this decision. (20 CFR 404.1520(g) and 416.920(g))” T. 39.


         A federal court reviews the “Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when convinced that it is not supported by substantial evidence or that proper legal standards were not applied.”). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.'” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). Even if the evidence preponderates against the Commissioner's decision, the decision must be affirmed if supported by substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

         When reviewing a Social Security disability case, the court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner.]'” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining whether substantial evidence supports a decision, we give great deference to the ALJ's factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). A reviewing court also may not look “only to those parts of the record which support the ALJ[, ]” but instead “must view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is deferential to a point, but the reviewing court conducts what has been referred to as “an independent review of the record.” Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985).[1]

         The Social Security Act defines disability as an “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). To qualify as a disability, the physical or mental impairment must be so severe that the plaintiff not only is unable to do her previous work, “but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A).

         Pursuant to 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the Commissioner analyzes a disability claim in five steps:

         1. If the claimant is performing substantial gainful activity, she is not disabled.

         2. If the claimant is not performing substantial gainful activity, her impairments must be severe before she can be found disabled.

         3. If the claimant is not performing substantial gainful activity and she has severe impairments that have lasted or are expected to last for a continuous period of at least twelve months, and if her impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.

         4. If the claimant's impairments do not prevent her from performing her past relevant work, she is not disabled.[2]

         5. Even if the claimant's impairments prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates the claimant's residual functional capacity and vocational factors, she is not disabled.

         Step five (or step four in cases where the ALJ decides a claimant can perform past work) is generally where the rubber meets the road. At that point, the ALJ formulates the all-important residual functional capacity (“RFC”). The ALJ establishes RFC, utilizing the impairments identified at step two, by interpretation of (1) the medical evidence; and (2) the claimant's subjective complaints (generally complaints of pain). Residual functional capacity is then used by the ALJ to make the ultimate vocational determination required by step five.[3] “[R]esidual functional capacity is the most [a claimant] can still do despite [claimant's] limitations.[4] 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Often, both the medical evidence and the accuracy of a claimant's subjective complaints are subject to a degree of conflict and that conflict leads, as in this case, to the points raised on judicial review by the disappointed claimant.


         Ms. Kelly was 39 years old at the time of the hearing. T. 52. She completed the eleventh grade and had not worked since her alleged onset date. T. 52. She had past relevant work as a daycare worker and waitress. T. 52-53. When asked why she felt she was unable to work, Ms. Kelly responded:

I stay in my room a lot. I stay alone. I stay in a lot of pain. I have trouble walking. I can't stand for a long period of time. I stay on pain medicine. I just lay in bed because I'm so depressed. I'm ...

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