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Melvin v. Berryhill

United States District Court, M.D. Florida, Orlando Division

March 27, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT United States Magistrate Judge

         I. Status

         John Ray Melvin (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of “p[ost ]t[raumatic ]s[tress ]d[isorder]” (“PTSD”), “back/neck injuries, ” “hearing loss, ” and “bilateral knee pain.” Transcript of Administrative Proceedings (Doc. No. 17; “Tr.” or “administrative transcript”), filed May 6, 2016, at 86, 98, 112, 125 (capitalization omitted). On November 29, 2011, Plaintiff filed applications for DIB and SSI, alleging an onset disability date of April 1, 2010. Tr. at 269-73 (DIB), 274-81 (SSI).[3] Plaintiff's applications were denied initially, see Tr. at 98-109, 110, 146-51 (DIB), 86-97, 111, 140-45, 152 (SSI), and were denied upon reconsideration, see Tr. at 112-24, 138, 157-62 (DIB), 125-37, 139, 163-68 (SSI).

         On July 24, 2013, an Administrative Law Judge (“ALJ”) held a hearing, during which the ALJ heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 46-85. A supplemental hearing was then scheduled because a medical expert (“ME”) was not available for the first hearing. Tr. at 215 (request for supplemental hearing), 31. On June 10, 2014, the ALJ held the supplemental hearing, during which the ALJ heard testimony from Plaintiff (who remained represented by counsel), the VE, and the ME. Tr. at 29-44. The ALJ issued a Decision on July 16, 2014, finding Plaintiff not disabled through the date of the Decision. Tr. at 11-23.

         The Appeals Council then received additional evidence in the form of a brief authored by Plaintiff's counsel. Tr. at 4-5. On November 25, 2015, the Appeals Council denied Plaintiff's request for review, Tr. at 1-3, thereby making the ALJ's Decision the final decision of the Commissioner. On January 28, 2016, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         On appeal, Plaintiff raises two issues: 1) whether the ALJ erred in evaluating certain findings of the Department of Veteran's Affairs (“VA”); namely, a sixty (60) percent disability rating and the opinions of Plaintiff's treating doctors regarding how his impairments affect him; and 2) whether the ALJ erred in presenting a hypothetical to the VE that did not include the limitations assigned by the doctors at the VA, and also in failing to ask the VE whether her testimony was consistent with the Dictionary of Occupational Titles. Plaintiff's Brief Addressing the Merits of Appeal (Doc. No. 21; “Pl.'s Br.”), filed July 10, 2016, at 2-3, (issue statements), 10-20 (argument regarding issue one), 20-24 (argument regarding issue two). On September 6, 2016, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 22; “Def.'s Mem.”) addressing the issues raised by Plaintiff.

         After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned determines that the Commissioner's final decision is due to be reversed and remanded for further proceedings. Specifically addressing Plaintiff's first argument, the undersigned finds that the ALJ erred in failing to articulate with requisite particularity the weight assigned to the treating doctors' opinions at the VA, and in failing to articulate the weight assigned to the VA's disability rating. On remand, reevaluation of the VA records and findings will likely impact the second issue raised by Plaintiff in this appeal. For this reason, the Court need not address Plaintiff's second issue. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (declining to address certain issues because they were likely to be reconsidered on remand); Demenech v. Sec'y of the Dep't of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need not be addressed when the case would be remanded on other issues).

         II. The ALJ's Decision

         When determining whether an individual is disabled, [4] an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         Here, the ALJ followed the five-step sequential inquiry. See Tr. at 13-23. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since April 1, 2010, the alleged onset date.” Tr. at 13 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: mild grade I spondylolisthesis, mild degenerative disc disease, mild to moderate degenerative joint disease of the right and left knee, mild osteoarthritis of the bilateral hands, and [PTSD].” Tr. at 13 (emphasis and citation omitted). At step three, the ALJ ascertained that “[Plaintiff] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 14 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”):

[Plaintiff can] perform sedentary work as defined in 20 CFR [§§] 404.1567(a) and 416.967(a) except he requires a sit/stand option with alternating intervals of 45 minutes, he can occasionally climb ramps, stairs, ladders, ropes, or scaffolds, he can occasionally balance, stoop, kneel, crouch, and crawl, he must avoid concentrated exposure to extreme cold and heat, he can occasionally work around wetness or humidity, he can have occasional proximity to mechanical moving parts and work in high places, and he can have only occasional close interpersonal interactions with the public and coworkers.

Tr. at 17 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as an “order clerk, ” a “stock clerk, ” an “assistant manager, ” a “maintenance worker, ” a “machine operator, ” and a “sales person.” Tr. at 21 (some emphasis and citation omitted). At step five, the ALJ considered Plaintiff's age (“45 years old . . . on the alleged disability onset date”), education (“a least a high school education and is able to communicate in English”), work experience, and RFC, and relied on the testimony of the VE to find Plaintiff is capable of performing work that exists in significant numbers in the national economy. Tr. at 21-23 (some emphasis omitted). Namely, the ALJ identified representative jobs as “scanner, ” “clerical assistant, ” and “ticket checker.” Tr. at 22. The ALJ concluded that Plaintiff “has not been under a disability . . . from April 1, 2010, through the date of th[e D]ecision.” Tr. at 23 (emphasis and citation omitted).

         III. Standard of Review

         This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ's conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence' . . . .” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “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)). The substantial evidence standard is met when there is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

         IV. ...

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