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Parnell v. Berryhill

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

March 30, 2017

ELVIE OLEATHA PARNELL, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT United States Magistrate Judge

         I. Status

         Elvie Oleatha Parnell (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying her claim for disability insurance benefits (“DIB”). Plaintiff's alleged inability to work is the result of bipolar disorder, depression, osteoporosis, gastroesophageal reflux disease (“GERD”), irritable bowel syndrome (“IBS”), and hypothyroidism. Transcript of Administrative Proceedings (Doc. No. 9; “Tr.” or “administrative transcript”), filed February 8, 2016, at 188. Plaintiff filed her DIB application on February 18, 2011, [3] alleging an onset date of June 1, 2006, Tr. at 156-57, that was later amended to January 21, 2009, see Tr. at 42, 560. Plaintiff's application was denied initially, Tr. at 77, 78, 95-96, and upon reconsideration, Tr. at 79, 80, 101-02.

         After holding a hearing on February 10, 2012, Tr. at 36-75, an Administrative Law Judge (“ALJ”) denied Plaintiff's claim in a decision issued on May 2, 2012, Tr. at 20-30, that became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on November 28, 2012, Tr. at 1-3. But on appeal to this Court, the May 2, 2012 decision was reversed on September 10, 2013, and the case was remanded to the Commissioner for further administrative proceedings. Tr. at 669-78 (September 10, 2013 Order, attached hearing transcript, and Judgment entered in Parnell v. Colvin, No. 3:13-cv-47-J-JBT).

         On remand from this Court, the ALJ held a hearing on August 29, 2014, and testimony was offered by Plaintiff, who was represented by counsel, as well as by a vocational expert (“VE”) and a medical expert, Dr. Donald Pollock, M.D., who is Plaintiff's treating psychiatrist. Tr. at 554-98. On December 3, 2014, the ALJ issued a Decision finding Plaintiff not disabled “at any time from . . . the alleged onset date, through December 31, 2011, the date last insured, ” and denying Plaintiff's claim.[4] Tr. at 545; see Tr. at 529-46.

         Plaintiff then requested review by the Appeals Council, Tr. at 770, and submitted to the Council additional evidence in the form of a memorandum by her attorney, Tr. at 523, 524; see Tr. at 771-74 (memorandum). On September 18, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. Tr. at 519-21. On November 10, 2015, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         Plaintiff raises two issues on appeal: (1) whether the ALJ “erroneously relied on the [VE's] response to an incomplete hypothetical question that did not include the need for [Plaintiff] to work in isolation”; and (2) whether the ALJ “erred in failing to articulate good cause for failing to credit the opinion of [Plaintiff's] long-time treating psychiatrist who actually testified at the remand hearing.” Plaintiff's Brief (Doc. No. 14; “Pl.'s Br.”), filed April 11, 2016, at 1; see id. at 9-25. Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 15; “Def.'s Mem.”) on June 9, 2016. After a thorough review of the entire record and the parties' respective memoranda, the undersigned finds that the Commissioner's final decision is due to be reversed and remanded for further administrative proceedings.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [5] 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 inquiry. See Tr. at 532-45. At step one, the ALJ determined that Plaintiff “did not engage in substantial gainful activity during the period from her amended alleged onset date of January 21, 2009 through her date last insured of December 31, 2011.” Tr. at 532 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “had the following severe impairments: disorders of the bladder; affective disorders; anxiety related disorders; and personality disorders.” Tr. at 532 (emphasis and citation omitted). At step three, the ALJ ascertained that Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 533 (emphasis and citation omitted).

         The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to “perform medium work . . . except [she] was limited to no more than simple, repetitive, routine tasks” and that she “needed to work in isolation with only occasional interaction with supervisors, co-workers, and the general public.” Tr. at 534-35 (emphasis omitted). At step four, the ALJ found that Plaintiff “has no past relevant work.” Tr. at 544 (emphasis and citation omitted). At step five, the ALJ considered Plaintiff's age (fifty-seven (57) years old on the date last insured), “limited education, ” work experience, and RFC, and the ALJ determined that “there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed.” Tr. at 544 (emphasis and citation omitted). Relying on the testimony of the VE, the ALJ identified as representative jobs a “Sweeper/Cleaner, Industrial”; a “Cleaner, Wall”; and a “Cleaner, Hospital.” Tr. at 545 (some capitalization omitted).

         The ALJ concluded that Plaintiff “was not under a disability, as defined in the Soda! Security Act, at any time from June 1, 2006, the alleged onset date, through December 31, 2011, the date last insured.”[6] Tr. at 545 (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). 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) (citation omitted). 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. Discussion

         Below, the two issues Plaintiff raises are addressed in turn, and the undersigned concludes the Decision is due to be reversed on the basis of the first issue only, with the ALJ to conduct further proceedings regarding the apparent inconsistency between the RFC finding and the hypothetical question posed to the VE.

         A. VE Hypothetical

         An ALJ poses a hypothetical question to a VE as part of his step-five determination of whether the claimant can obtain work in the national economy. See Wilson, 284 F.3d at 1227. When the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC assessment in the ALJ's written decision to the adequacy of the RFC description contained in the hypothetical posed to the VE. Corbitt v. Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished) (citation omitted).

         In determining an individual's RFC and later posing a hypothetical to a VE that includes the RFC, the ALJ “must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” SSR 96-8P, 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1545(a)(2); Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985) (stating that “[w]here a claimant has alleged a multitude of impairments, a claim . . . may lie even though none of the impairments, considered individually, is disabling” (internal quotation and citations omitted)); Wilson, 284 F.3d at 1227 (stating that “for a [VE]'s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments” (citation omitted)).

         Here, the ALJ described to the VE a hypothetical individual who was “restricted to medium work as defined in the regulations except with no more than simple, routine, repetitive tasks with no more than occasional interaction with supervisors, coworkers, and the general public.” Tr. at 591-92 (emphasis added). In the Decision, as quoted above, the ALJ's RFC finding included that Plaintiff could “perform medium work . . . except [she] was limited to no more than simple, repetitive, routine tasks” and that she “needed to work in isolation with only occasional interaction with supervisors, co-workers, and the general public.” Tr. at 534-35 (some emphasis omitted).

         Plaintiff contends that “[t]he ALJ improperly relied on the VE's response to an incomplete hypothetical question that did not match the limitations in the ALJ's [RFC] assessment.” Pl.'s Br. at 10. Specifically, Plaintiff argues, “The ALJ's hypothetical question to the [VE] differed from the . . . [RFC] assessment because the ALJ failed to include a need to work in isolation in the hypothetical question.” Pl.'s Br. at 12 (citing Tr. at 592). The omission is significant, in Plaintiff's view, because “[t]he addition of a ...


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