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Parrott v. Berryhill

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

March 20, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [1]

          JAMES R. KLINDT United States Magistrate Judge

         I. Status

         Josephine Parrott (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying her claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of “Type II Diabetes, ” “Pancreatitis, ” “Arthritis, ” as well as bowel and other issues.[2] Modified Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed April 17, 2017, at 89, 98, 111, 121, 236[3]; see also Tr. at 91, 100. On June 11, 2013, Plaintiff filed an application for DIB, alleging an onset disability date of June 30, 2012, Tr. at 195-201, and on June 12, 2013, Plaintiff filed an application for SSI, alleging the same onset date, Tr. at 202-07 (SSI). Plaintiff's applications were denied initially, see Tr. at 87, 98-106, 107, 133-37 (DIB), 88, 89-97, 108, 138-43 (SSI), and were denied upon reconsideration, see Tr. at 109, 111-20, 131, 149-53 (DIB), 110, 121-30, 132, 154-58 (SSI).

         On May 13, 2015, 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 61-86. At the time of the hearing, Plaintiff was fifty-two (52) years old. Tr. at 64. The ALJ issued a Decision on August 27, 2015, finding Plaintiff not disabled through the date of the Decision. Tr. at 49-56. Plaintiff then submitted additional evidence to the Appeals Council in the form of a brief authored by her counsel and some medical records. Tr. at 5-6; see Tr. at 288-90 (brief), 8-9, 483-510 (medical records). On December 8, 2016, the Appeals Council denied Plaintiff's request for review, Tr. at 1-4, thereby making the ALJ's Decision the final decision of the Commissioner. On January 26, 2017, 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 makes two arguments. See Plaintiff's Brief (Doc. No. 20; “Pl.'s Br.”), filed July 18, 2017, at 1. First, Plaintiff argues that the ALJ “improperly minimized the severity of [Plaintiff's] physical impairments in light of [Plaintiff's] physical therapy notes dated September 2014 to November 2014 and erred in failing to order a consultative examination.” Pl.'s Br. at 1; see id. at 8-11. Second, Plaintiff contends that “[t]he Appeals Council erred in failing to remand [Plaintiff's] case for consideration of [consultative examining physician William Choisser, M.D.'s] complete report and the treating ophthalmology records of [Gregory M. Lewis, M.D.] dated prior to the date of the [ALJ's ]Decision.” Id. at 1 (emphasis omitted); see id. at 11-14. Plaintiff continues regarding the second argument, “Because there is a reasonable possibility that the new evidence would change the administrative outcome, this matter should be remanded for consideration of the new and material evidence.” Id. at 1; see id. at 11-14. On October 3, 2017, Defendant filed a Memorandum in Support of the Acting Commissioner's Decision (Doc. No. 24; “Def.'s Mem.”) addressing Plaintiff's arguments.

         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. Addressing Plaintiff's second argument, the undersigned finds that the Appeals Council erred in refusing to consider the additional evidence presented to it. On remand, consideration of this evidence will impact the first argument raised by Plaintiff in this appeal. For this reason, the Court need not address that argument. 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 51-56. At step one, the ALJ determined that Plaintiff “engaged in substantial gainful activity during . . . 2012” but “there has been a continuous 12-month period(s) during which [Plaintiff] did not engage in substantial gainful activity.” Tr. at 51 (emphasis and citation omitted). “The remaining findings [in the ALJ's Decision] address the period(s) [Plaintiff] did not engage in substantial gainful activity.” Tr. at 51. At step two, the ALJ found that Plaintiff “has the following severe impairments: diabetes mellitus, type II; gastrointestinal disorder; status post surgeries [related to private issues]; pancreatitis; obesity; and arthropathies.” Tr. at 52 (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 52 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”): “[Plaintiff can] perform the full range of light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b).” Tr. at 52 (emphasis omitted). At step four, the ALJ relied on the testimony of the VE and found that Plaintiff “is capable of performing past relevant work as a cosmetologist and security/gate guard [because t]his work does not require the performance of work-related activities precluded by [Plaintiff's RFC].” Tr. at 55 (emphasis and citations omitted). Because the ALJ found Plaintiff is capable of performing her past relevant work at step four, the ALJ was not required to, nor did he, proceed to step five. See Tr. at 56. The ALJ concluded that Plaintiff “has not been under a disability . . . from June 30, 2012, through the date of th[e D]ecision.” Tr. at 56 (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. Discussion

         Plaintiff contends the Appeals Council erred in denying review after accepting additional evidence in the form of Dr. Choisser's examination summary and opinion, as well as Dr. Lewis's ophthalmology records (that consist of a treatment note and a letter to Plaintiff). Pl.'s Br. at 1, 11-14; see Tr. at 8-9, 484-87 (Dr. Choisser), 491-94 (Dr. Lewis). Plaintiff contends the Appeals Council erroneously refused to consider the evidence because it is new, material, and carries a reasonable possibility that the administrative result would change. Pl.'s Br. at 1, 11-14. Responding, Defendant contends the Appeals Council did not err in refusing to consider the evidence because “Dr. Choisser's evaluation and opinion were not chronologically relevant and Dr. Lewis's treatment note and letter would not change the ALJ's finding of no disability.” Def.'s Mem. at 10-11.

         Dr. Choisser examined Plaintiff on an unknown date, and on April 19, 2016, he authored a summary of Plaintiff's history and examination, as well as rendered an opinion regarding the effects of Plaintiff's impairments.[5] Tr. at 8-9, 484-87. Dr. Choisser's opinion, if accepted, would indisputably result in a finding of disability. See Tr. at 484-87. Dr. Choisser opined that Plaintiff's symptoms and limitations were present as of 2012, Tr. at 487, encompassing the relevant time period (and well before the ALJ's August 27, 2015 Decision). Although Dr. Choisser did not state so, his detailed summary ...

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