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Nice v. Acting Commissioner of Social Security Administration

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

February 12, 2018

DANIEL NICE Plaintiff,
v.
ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court on Plaintiff's appeal of an administrative decision denying his application for a period of disability and Disability Insurance Benefits (“DIB”). Plaintiff alleges he became disabled on April 1, 2015. (Tr. 30, 46.) A hearing was held before the assigned Administrative Law Judge (“ALJ”) on June 6, 2016, at which Plaintiff was represented by an attorney. (Tr. 44-76.) The ALJ found Plaintiff not disabled from April 1, 2015 through July 27, 2016, the date of the decision.[2] (Tr. 27-39.)

         Plaintiff has exhausted his available administrative remedies and the case is properly before the Court. The undersigned has reviewed the record, the briefs, and the applicable law. For the reasons stated herein, the Commissioner's decision is REVERSED and REMANDED.

         I. Standard of Review

         The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 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 v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings).

         II. Discussion

         Plaintiff raises two issues on appeal. First, Plaintiff argues that the ALJ failed to carefully consider Plaintiff's disability rating from the Department of Veterans Affairs (“VA”) and the opinions of the VA compensation and pension examiners, Dr. Taylor, Dr. Swan, and Dr. Gorman. Plaintiff's second argument is that the ALJ erred in concluding that Plaintiff's anxiety and post-traumatic stress disorder (“PTSD”) were not severe impairments.

         In response to Plaintiff's first argument that the ALJ failed to carefully consider Plaintiff's VA disability rating, Defendant states that there is no official record of a VA rating determination, 70% or otherwise, in the record, even though at the administrative hearing, Plaintiff's attorney agreed to obtain a copy for the record. Defendant asserts that Plaintiff did not satisfy his burden to produce evidence of a VA rating and the ALJ did not ignore any VA rating. Further, Defendant argues that the ALJ adequately considered the opinions of the doctors who worked at the VA and referred to those opinions by exhibit number. Defendant states that the ALJ's references either addressed or were consistent with the opinions of VA Drs. Rozin, Gordon, Pujol, Garner, Jensen, and Pafford, and the ALJ was not required to refer to every piece of evidence in her decision. Defendant contends that the ALJ committed no error, or at most a harmless error, by not listing all VA doctors by name because the ALJ expressly considered all medical opinions and Plaintiff's medical condition as a whole. In response to Plaintiff's second argument, Defendant argues that substantial evidence supports the ALJ's determination that Plaintiff's anxiety and PTSD were not severe impairments; even if the Court concludes otherwise, any error at step two of the sequential evaluation process would be, at most, harmless, because the ALJ identified at least one severe impairment and proceeded with the functional evaluation.

         A. The ALJ's Decision

         The ALJ found that Plaintiff has severe impairments, including obesity, degenerative joint disease in both knees, status post total left knee replacement, and degenerative disc disease. (Tr. 32.) The ALJ also found that Plaintiff has the residual functional capacity (“RFC”) to:

lift and carry up to twenty pounds occasionally and ten pounds frequently; stand/walk for two hours per eight-hour workday; sit for six hours per eight-hour workday; he can only occasionally climb ramps and stairs, kneel and crouch; he can never crawl or climb ladders, ropes or scaffolds; he should avoid concentrated exposure to unprotected heights, dangerous equipment, extreme heat and cold temperatures, humidity and vibrations; [and] he can occasionally balance and stoop.

(Tr. 34.)

         As to Plaintiff's disability rating, the ALJ stated:

I have considered the opinions from the VA about the claimant's limitations and disability rating. (See[, ] e.g., Exhibits 7F, 9F). Under the regulations, a determination by another governmental agency that the claimant is disabled or limited is not binding on the Social Security Administration, but can be used as evidence of disability (20 CFR 404.1504 . . . and SSR 06-03p). I note that other agencies follow different rules and standards in determining disability and limitations. Therefore, only some weight is given to the VA's disability rating and findings about the claimant's limitations.

(Tr. 37.)

         Then, after finding that Plaintiff was unable to perform his past relevant work, the ALJ concluded that Plaintiff could perform other jobs existing in significant numbers in the national economy. (Tr. 37-38.)

         B. The Administrative Hearing

         At the June 6, 2016 administrative hearing, the following exchange took place between Plaintiff and the ALJ:

Q Now are you, are you getting anything from the VA, any income from the VA?
A I get $1, 400 a month from the VA.
Q And is -- what is that for?
A Disability.
Q Okay. Of what, on what?
A The service connected disabilities that I currently have are my right eye, my hypertension, my PTSD and my knees.
Q And that, did I see somewhere that that was less ...

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