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Hooper v. Acting Commissioner of Social Security

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

February 12, 2018

Josh Hooper, Plaintiff,
v.
Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          Patricia D. Barksdale, United States Magistrate Judge

         This is a case under 42 U.S.C. § 405(g) to review a final decision of the Acting Commissioner of Social Security denying Josh Hooper's claim for disability-insurance benefits.[1] Hooper seeks reversal and remand based on the Administrative Law Judge's (“ALJ's”) findings concerning his impairments, residual functional capacity (“RFC”), and past relevant work. Doc. 18.

         I. Background

         Hooper was born in 1962 and last worked in October 2012, when he retired. Tr. 185, 230. He has some college education and experience as a police officer and police captain. Tr. 43-46, 62. He alleges he became disabled in October 2012 from post-traumatic stress disorder (“PTSD”), a lumbar injury, hypertension, gastroesophageal reflux disease, chronic bronchitis, headaches, and nerve damage in his elbows, hands, neck, and lower back.[2] Tr. 229-30. He is insured through 2017. Tr. 194, 205. He proceeded through the administrative process, failing at each level. Tr. 1-6, 20-29, 75-101, 104-07, 109-14. This case followed. Doc. 1.

         II. ALJ's Decision

         The ALJ entered a decision on June 1, 2016. Tr. 29.

         At step one, [3] the ALJ found Hooper has not engaged in substantial gainful activity since October 2012 (the alleged onset date). Tr. 22.

         At step two, the ALJ found Hooper suffers from severe impairments of cervicalgia; degenerative disc disease of the lumbar spine, status post-lumbar surgery; and status post-right-shoulder surgery. Tr. 22. She found his PTSD, major depressive disorder, anxiety disorder, and alcohol/substance abuse addiction are non- severe. Tr. 22. In doing so, she considered the “paragraph B” criteria[4] and found he has mild difficulties in activities of daily living; mild difficulties in social functioning; and mild difficulties maintaining concentration, persistence, and pace; and has had no episode of decompensation of extended duration. Tr. 23-24.

         At step three, the ALJ found Hooper has no impairment or combination of impairments that meets or medically equals the severity of any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23.

         After stating she had considered the entire record and summarizing medical evidence, the ALJ found Hooper has the RFC to perform “a reduced range of light work”:[5]

Specifically, the claimant could lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for a total of six hours in an eight-hour day, and sit for a total of six hours in an eight-hour day. The claimant is able to occasionally climb ladders/ropes/scaffolds. The claimant is able to occasionally stoop, kneel, crouch, and crawl. Additionally, the claimant must avoid concentrated exposure to hazards, such as machinery and heights.

Tr. 24.

         At step four, the ALJ found Hooper can perform his past relevant work as a police captain as that position is generally performed. Tr. 28. She therefore found no disability. Tr. 28.

         III. Standard of Review

         A court's review of an ALJ's decision is limited to determining whether the ALJ applied the correct legal standards and whether substantial evidence supports his findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is “less than a preponderance”; it is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. A court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner's judgment. Id. If an ALJ committed an error of law, the court must remand the case to the Commissioner. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987).

         IV. Law & Analysis

         A. Mental Impairments

         In his first and second issues, Hooper complains about the ALJ's analysis of his mental impairments. Doc. 18 at 17-22.

         After his retirement from law enforcement, beginning in April 2014, and continuing to at least February 2016 (the date of the last record), Hooper visited Circles of Care for mental health treatment at least fourteen times. Tr. 350-80 (Ex. 2F); Tr. 611-18 (Ex. 9F).

         At Circles of Care, Hooper saw Rehan Farooqui, M.D., Todd Gates, D.O., and Mathew Sajida, M.D. Tr. 350-80; Tr. 611-18. They diagnosed him with anxiety disorder, major depressive disorder, and PTSD. Tr. 352, 355, 358, 360, 362, 364, 366, 368, 370, 374, 378, 612, 615. They prescribed medications for the impairments and their symptoms. Tr. 353, 356, 359, 361, 363-65, 367, 369, 371, 373, 375, 379-80, 613- 14, 616. Eventually, Dr. Gates opined, it “is very clear that there is a problem with substance abuse and dependence.” Tr. 363.

         Global Assessment of Functioning (“GAF”) ratings[6] made during the visits were usually 55 (indicating moderate symptoms or impairments), but sometimes 60 (also indicating moderate symptoms or impairments) and 65 (indicating mild symptoms or impairments), and once as low as 49 (indicating serious symptoms or impairments). Tr. 352, 355, 358, 360, 362, 364, 366, 368, 612, 615.

         Mental status examinations performed during the visits showed normal functioning in many areas but issues in some areas: only fair insight and judgment in April 2014; struggles with anxiety and reports of significant problems with focus and concentration in May 2014; a mildly nervous affect and only fair insight and judgment in June 2014; difficulty concentrating, nightmares, flashbacks, and intrusive unwanted memories of traumas in July 2014; increased anxiety and mild depression in January 2015; an overly medicated appearance, slurred speech, a dull flat affect, and mildly impaired concentration in July 2015; a highly anxious and very depressed presentation and negative preoccupation in July 2015; a “down” mood and limited insight and judgment in July 2015; and limited insight and judgment in January and February 2016. Tr. 352-53, 355, 364, 368, 370, 372, 374, 378, 615, 612.[7]

         In a record from a visit on February 24, 2016, Dr. Mathew noted,

[Hooper's] wife called several days ago, concerned about his depressive symptoms, and had indicated that they had planned for him to get voluntarily admitted to a hospital/residential facility. He stated today, that they are still looking at options. He reported that he is feeling better than he was at that time. He continues to feel depressed, have poor energy and motivation, anhedonia, and difficulty functioning, but denies suicidal thoughts. He stated that pain is also less controlled. Discussed medication trials including brintellix, but he stated that he does not want to take anymore medications. Past medication trials has been ineffective, or he has not been able to tolerate it. He denies drug or alcohol abuse. He stated his wife is very supportive. He denies aggressive or suicidal thoughts.

Tr. 612.

         Hooper's wife provided two third-party functional reports. Tr. 210-17, 264-79. In one from August 2015, she included that Hooper “cannot con[c]entrate for very long on any task because the pain is very distracting”; he “lays in the recliner chair [or] bed” and does “very little else”; he used to do all of the cooking and grocery shopping but can now only make sandwiches; he sometimes forgets to pay the bills; they used to go to the beach, dine out, ride bikes, boat, fish, and walk, but now he only watches television; his conversations become “sporadic” and “bounce[] to other topics without notice”; he “starts to do chores and stops completely”; he “can only follow a very short list with simple instructions w/out distraction”; he does not handle stress well because the “pain causes guilt and he feels sad about all the things he cannot help with”; and he has begun “strange habits” like making throat noises and eating more desserts than he ever has. Tr. 210-16. She concluded, “He used to be a police officer-strong, attentive to detail, a leader. He used to take care of all things around the house. Now he can do nothing[.]” Tr. 217. She provided a similar statement on another occasion (the date is unclear). Tr. 264-79.

         The record also includes a summary of an interview of Hooper's wife in September 2015. Tr. 248 (Exhibit 8E). The interviewer conveyed that Hooper's wife had provided the following information. Hooper has a driver's license and owns a car. Tr. 248. She drives him to appointments and errands, but because she has a fulltime job, he sometimes has to drive himself. Tr. 248. He takes care of his personal hygiene and grooming and takes his medication without help. Tr. 248. He manages the money, and she checks, hoping he is doing okay. Tr. 248. He does small chores (the dishes, some laundry, and some light cleaning). Tr. 248. He uses the computer for online banking and email. Tr. 248. Because he is “in a lot of pain, ” he does little during the day and no longer grocery shops. Tr. 248. He “jumps around [a lot] and does not concentrate as well as he used [to].” Tr. 248. He does not really watch movies with a storyline anymore. Tr. 248. He gets along well with other people. Tr. 248.

         For the initial benefits determination, the Social Security Administration (“SSA”) considered a report from Judith Meyers, Psy. D., a state-agency consultant. Tr. 75-86 (Exhibit 1A). She reviewed the records from Circles of Care up to August 2015. Tr. 77. In her “Findings of Fact and Analysis of Evidence, ” she describes only one record from Circles of Care (the record of the visit on July 27, 2015). Tr. 79. She identified Hooper's mental impairments as “Affective Disorders, ” “Anxiety Disorders, ” and “Alcohol, Substance Addiction Disorders” and opined each was “Non Severe.” Tr. 80. For the paragraph B criteria, she opined he has mild difficulties in activities of daily living; mild difficulties in social functioning; and mild difficulties maintaining concentration, persistence, and pace; and has had no episode of decompensation of extended duration. Tr. 80. Under “Additional Explanation, ” she partially describes the record from Circles of Care she had described earlier, part of another record from Circles of Care that indicated his wife's concern about his pain management with opioids and past alcohol abuse (a record of a visit on March 12, 2015), and the summary of his wife's September 2015 interview. Tr. 81. Dr. Meyers opined his “[l]imitations [are] primarily physical, not severe mentally.” Tr. 81.

         For the reconsideration determination, the SSA considered a report from John Thibodeau, Ph.D., another state-agency consultant. Tr. 93-100 (Exhibit 3A). He reviewed the records from Circles of Care up to October 2015. Tr. 90. In his “Findings of Fact and Analysis of Evidence, ” he describes two records from Circles of Care.[8] Tr. 93. He identifies the same mental impairments and provides the same opinions as Dr. Meyers. Tr. 93-94. Under “Additional Explanation, ” he partially describes the ...


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