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Scott v. Berryhill

United States District Court, S.D. Florida

March 29, 2018

ERIC LEOTIS SCOTT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          ANDREA M. SIMONTON CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the cross-motions for summary judgment filed by Plaintiff Eric Leotis Scott ("Plaintiff") and by Defendant Nancy A. Berryhill, Acting Commissioner of Social Security Administration ("Defendant"), ECF Nos. [26] and [29]. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge to conduct any and all proceedings in this case, ECF No. [23]. The summary judgment motions are now ripe for disposition.

         For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Summary Judgment, ECF No. [26] be GRANTED, and Defendant's Motion for Summary Judgment, ECF No. [29] be DENIED.

         I. PROCEDURAL BACKGROUND

         In August 1998, at the age of three, Plaintiff was found disabled based on an application for Social Security Income. (R. 77). The Plaintiff turned 18 on March 14, 2012, triggering the requirement that the Plaintiff's eligibility for disability benefits be redetermined under the rules for determining disability in adults. (R. 77). The agency conducted a disability review, and on August 9, 2012, it was determined that Plaintiff's disability had ceased as of August 1, 2012, because he did not meet the adult requirements for disability. (R. 77). Upon Plaintiff's request for reconsideration, the Commissioner's disability hearing officer conducted a hearing on April 23, 2013. (R. 165-169). A decision was issued on June 10, 2013, affirming the cessation of Plaintiff's disability benefits. (R. 179).

         Thereafter, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (R. 77). A hearing was commenced on October 16, 2014, but the Plaintiff had been unable to obtain counsel and requested a one-time postponement so that he could do so. (R. 140). A hearing was held on February 6, 2015. (R. 93, 264). Plaintiff was unrepresented, and signed a waiver of his right to representation. (R. 93). On March 16, 2015, the ALJ issued a decision finding that Plaintiff's disability ended on August 1, 2012, and that Plaintiff had not become disabled again since that date. (R. 77-85). The Plaintiff requested a review of the ALJ's decision, which was denied by the Appeals Council on July 6, 2016, ECF No. [1] at 2.

         Having exhausted all administrative remedies, the Plaintiff timely filed the pending Complaint seeking judicial review of the administrative proceedings, ECF No. [1]. The Plaintiff requests this Court to reverse for an award of benefits, or, in the alternative, the Plaintiff requests this Court to remand this matter to the Commissioner for reconsideration of the evidence, ECF No. [1] at 4.

         II. LEGAL ISSUES PRESENTED

         In his Motion for Summary Judgment, the Plaintiff contends that the ALJ committed errors which precluded the Plaintiff from obtaining benefits. The alleged errors can be summarized as the Plaintiff alleging that the ALJ failed to properly assess the medical evidence of record, failed to conduct a proper credibility assessment, and failed to develop a full and fair record, ECF No. [26].

         The Defendant contends in its Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment that substantial evidence supports the ALJ's assessment of Plaintiff's symptoms, any error by the ALJ in failing to address a medical source opinion was harmless, substantial evidence supports the ALJ's Step Five finding, and the ALJ fully and fairly developed the record, ECF No. [29].

         III. STANDARD OF REVIEW

         Judicial review of the ALJ's decision in disability cases is limited to determining whether the record contains substantial evidence to support the ALJ's factual findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, (1971); Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “Substantial evidence” is more than a scintilla, but less than preponderance and is generally defined as such relevant evidence which a reasonable mind would accept as adequate to support a conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Bloodworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         When reviewing the evidence, the Court may not reweigh evidence or substitute its judgment for that of the ALJ, and even if the evidence “preponderates” against the Commissioner's decision, the reviewing court must affirm if the decision is supported by substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). This restrictive standard of review, however, applies only to findings of fact. No presumption of validity attaches to the Commissioner's conclusions of law, which are reviewed de novo, including the determination of the proper standard to be applied in reviewing claims. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991) (“The Commissioner's failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.”); Martin v. Sullivan, 894 F.2d at 1529.

         IV. FRAMEWORK FOR ANALYSIS

         Section 1614(a)(3)(H) of the Social Security Act of 1935 (the “Act”) provides that individuals who are eligible for supplemental security income benefits under the age of eighteen must have their disability redetermined at age 18 under the rules for disability used for adults. Demps v. Astrue, No. 3-10-cv-621-J-12MCR, 2011 WL 4530843, at *3 (M.D. Fla. Aug. 2, 2011), report and recommendation adopted, No. 3:10-cv-621-J-12MCR, 2011 WL 4549603 (M.D. Fla. Sept. 29, 2011). Additionally, the Act provides that the medical improvements review standard in section 1614(a)(4) does not apply to disability redeterminations at age 18. Id. Instead, the definition of disability that must be applied is the definition used for adults who file new applications for supplemental security income benefits based on disability. Id.

         Under this standard, the Social Security Administration applies a five-step sequential analysis to make a disability determination. 20 C.F.R. § 416.920(a)(4).[1] The analysis follows each step in order, and the analysis ceases if at a certain step the ALJ is able to determine, based on the applicable criteria, either that the claimant is disabled or that the claimant is not disabled.

         A. Step One

         Step one is a determination of whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 416.920(b). “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. § 416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, it is presumed that he has demonstrated the ability to engage in substantial gainful activity. 20 C.F.R. §§ 416.974, 416.975. If an individual has been participating in substantial gainful activity, he will not be considered disabled, regardless of physical or mental impairment, despite the severity of symptoms, age, education, and work experience. The analysis proceeds to step two if the individual is not engaging in substantial gainful activity.

         In the case at bar, there was no step one determination because it is not used when redetermining disability at age 18. See 20 CFR 416.987(b).

         B. Step Two

         At the second step, the claimant must establish that he has a severe impairment. Step two has been described as the “filter” which requires the denial of any disability claim where no severe impairment or combination of impairments is present. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). This step has also been recognized as a “screening” to eliminate groundless claims. Stratton v. Bowen, 827 F.2d 1447, 1452 (11th Cir. 1987). The ALJ makes a severity determination regarding a classification of the claimant's medically determinable impairment or combination of impairments. 20 C.F.R. § 416.920(c). To be severe, an impairment or combination of impairments must significantly limit an individual's physical or mental ability to perform basic work activities. 20 C.F.R. § 416.921(a). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. § 416.921; Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p.

         In sum, an impairment or combination of impairments is considered to be not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.921(a). Basic work activities are the abilities and aptitudes necessary to do most jobs. These include: (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers and usual work situations; and (6) dealing with changes in a routine work setting. C.F.R. § 416.921(b).

         The evaluation of the severity of mental impairments is governed by 20 C.F.R. § 416.920(a). This regulation sets forth a special technique to be used to determine whether a mental impairment is severe at step two. Specifically, the ALJ is required to rate the degree of limitation in four functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and, episodes of decompensation. 20 C.F.R. § 416.920a(c)(3). A five-point scale is used to rate the degree of limitation in the first three areas: none, mild, moderate, marked, and extreme. The last area, episodes of decompensation, is rated on a four-point scale: none, one, two, three, and four or more. 20 C.F.R. § 416.920a(c)(4). If the degree of limitation in the first three areas is “none” or “mild” and the fourth area is “none, ” the impairment is generally considered “not severe, unless the evidence otherwise indicates that there is more than a minimal limitation” in the ability to do basic work activities. 20 C.F.R § 416.920a(d)(1).

         If the claimant does not have a severe medically determinable impairment or combination of impairments, he is not disabled and the analysis ends here. If the ALJ finds that the claimant has a severe medically determinable impairment or combination of impairments, the process advances to the third step.

         In the case at bar, the ALJ found that Plaintiff had the severe impairments of learning disorder, schizoaffective disorder depressed type with psychosis, mood disorder, and bipolar disorder. (R. 79). Because the ALJ found at least one severe impairment, the ALJ then proceeded to the next step.

         C. Step Three

         The third step requires the ALJ to consider if Plaintiff's impairment or combination of impairments is at the level of severity to either meet or medically equal the criteria of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings"). A claimant is considered to be disabled if his impairment or combination of impairments: 1) is severe enough to meet or to medically equal the criteria of a listing; and 2) meets the duration requirement under 20 C.F.R. § 416.909. If the claimant's impairment or combination of impairments does not meet the criteria specified in the Listings, then the ALJ must proceed to the fourth step.

         In the case at bar, the ALJ found that the 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 C.F.R. Part 404, Subpart P, Appendix 1. (R. 79). In reaching this conclusion, the ALJ considered the criteria of listings 12.02, 12.03, and 12.04 and considered whether the “paragraph B” criteria were satisfied. (R. 79). With respect to these criteria, the ALJ found that the Plaintiff had mild restrictions in activities of daily living, moderate difficulties in social function, and moderate difficulties as related to concentration, persistence or pace. (R. 29). As for episodes of decompensation, the ALJ found that the Plaintiff had not experienced any episodes of decompensation of extended duration. (R. 80). The ALJ noted that record “is devoid any [sic] evidence of inpatient hospitalizations for an exacerbation of any mental symptoms at any time pertinent to this decision.” (R. 80). The ALJ also considered whether the “paragraph C” criteria were satisfied, and determined that the record was devoid of repeated episodes of decompensation, potential episodes of decompensation or the inability to function outside a highly supportive living arrangement or outside the area of the claimant's home. (R. 80-81). The analysis then proceeded to step four.

         D. Step Four

         Step four is a two-pronged analysis that involves a determination of whether the impairments prevent the claimant from performing his past relevant work. First, the ALJ must determine the claimant's Residual Functional Capacity (“RFC”) as described in 20 C.F.R. § 416.920(e).[2] RFC measures a person's ability to do physical and mental work activities on a sustained basis despite limitations caused by their impairments. In making this determination, the ALJ must consider all of the claimant's impairments, regardless of the level of severity. 20 C.F.R. §§ 416.920(e), 416.945; SSR 96-8p; Tuggerson-Brown v. Comm'r of Soc. Sec., No. 13-14168, 2014 WL 3643790, at *2 (11th Cir. Jul. 24, 2014) (an ALJ is required to consider all impairments, regardless of severity, in conjunction with one another in performing the latter steps of the sequential evaluation).

         In the case at bar, the ALJ found that the Plaintiff had the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: “the claimant would be limited to performing simple, routine, and repetitive tasks.” (R. 83). The ALJ found that, “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence, and limiting effects of those symptoms are not entirely credible.”

         After determining a claimant's RFC, the step four analysis requires a determination of whether a claimant has the RFC to perform the requirements of his past relevant work. 20 C.F.R. § 416.965. In the case at bar, the ALJ determined that Plaintiff had no past relevant work. (R. 84).

         Because the Plaintiff did not have any past relevant work, the ALJ proceed to step five.

         E. Step Five

         If the claimant is not able to perform his past relevant work, the ALJ progresses to the fifth step. At this step, the burden of production shifts to the Commissioner to show that other work that the claimant can perform exists in significant numbers in the national economy. Jones v. Apfel, 190 F.3d 1224, 128 (11th Cir. 1999); 20 C.F.R. § 416.912(g) and 416.960(c). In making this determination, the ALJ considers a claimant's RFC as determined in connection with step four, as well as the claimant's age, education, and work experience to determine if he can perform any other work.

         Based upon the testimony of the vocational expert (“VE”) the ALJ found that the Plaintiff could perform work as a landscape laborer, cleaner, and laundry worker. (R. 36).

         V. PLAINTIFF'S BACKGROUND

         A. Background

         At the time of his hearing, the Plaintiff was a 20 year-old man. (R. 81). The Plaintiff has a history of learning disorder; schizoaffective disorder, depressed type with psychosis; mood disorder; and bipolar disorder. (R. 81). The Plaintiff received childhood disability benefits based upon having met the childhood listing for organic mental disorders under 112.02 (A)(B). (R. 82.). The Plaintiff attended school through the eleventh grade, attending a combination of general and exceptional education classes, (R. 83), but did not graduate or receive any equivalent degree. (R. 99-100). At the time of his hearing, the Plaintiff was no longer enrolled in high school. (R. 99-100). The Plaintiff resides with his father. (R. 120). The Plaintiff testified that he is not and has never been employed. (R. 101-02).

         On February 23, 2013, Patricia Scott, the Plaintiff's mother, completed a Function Report regarding the Plaintiff. (R. 379).[3] Ms. Scott has known the Plaintiff all his life and they lived together at the time she completed the report. (R. 379). Ms. Scott described the Plaintiff's daily routine as consisting of going to school, coming home, eating, going to his room, and listening to music or playing video games. (R. 380). She reported that the Plaintiff did not care for or assist with the care of anyone other than himself or any pets or other animals, but was able to take care of his own personal care and medications and did not need any reminders. (R. 380-81). The Plaintiff did not know how to cook and could not prepare his own meals, but he was able to clean his room and do yard work, though very slowly. (R. 381-82). The Plaintiff was able to go out alone on a daily basis, travelling by foot. (R. 382). He was able to shop for “video games, clothes, junk food” and he did so “three times a month;” it “takes hours.” (R. 382). The Plaintiff did not pay bills, have his own bank accounts, or use checkbooks or money orders, but he was able to count change. (R. 382). Ms. Scott reported that the Plaintiff's disability affected his concentration, understanding, following instructions, and getting along with others and that he “has [an] attitude problem with me and everyone else.” (R. 384). The Plaintiff follows written instructions very poorly and spoken instructions “somewhat ok, ” handles stress poorly, and his response to changes in his routine was unknown because he does the same thing every day. (R. 384-85). The Plaintiff did not take any medications at that time. (R. 386).

         B. Medical History

         On June 20, 2002, Dr. Jack R. Weitz conducted a Learning Disabilities Evaluation of the Plaintiff. (R. 544). The Plaintiff was eight years old at the time of this evaluation. (R. 544). Dr. Weitz was unable to provide a diagnosis of the Plaintiff's intellectual ability or the presence of a learning disability due to the Plaintiff's failure to complete all the testing tasks. Dr. Weitz did, however, diagnose the Plaintiff with dysthymia, or persistent depressive disorder, noting that the Plaintiff had displayed feelings of inadequacy and low self-esteem. (R. 545). Dr. Weitz recommended mental health treatment for the Plaintiff and that his ability to manage his own benefits should be reevaluated upon reaching adulthood. (R. 545).

         On July 24, 2012, Dr. Angela C. Brinson, Licensed School Psychologist, conducted a psychological evaluation of Plaintiff to aid in the determination of this case. (R. 565). At the time of this evaluation, the Plaintiff was 18 years of age. (R. 565). The Plaintiff arrived on-time and was appropriately groomed and attired. (R. 565). The Plaintiff was accompanied to the session by his maternal aunt, Patricia Ferguson. (R. 565). Dr. Brinson noted that “[the Plaintiff]'s level of attention and concentration were appropriate.” (R. 566). On the Wechsler Adult Intelligence Scale (WAIS-IV) test to assess intellectual functioning, Dr. Brinson concluded the Plaintiff is functioning “in the Borderline range of intellectual ability relative to his same age peers.” (R. 566). Specifically assessing the Plaintiff's working memory abilities, which involve “attention, concentration, mental control, and reasoning, ” Dr. Brinson concluded that the Plaintiff's working memory skills are in the low average range. (R. 566). Dr. Brinson also administered the WJ-III to assess the Plaintiff's current level of academic achievement, and concluded the Plaintiff was functioning in the “low average to deficient range of academic achievement, ” scoring on a 5th grade level for Broad Reading, and on a sixth grade level for Broad Mathematics. Dr. Brinson ultimately concluded that the Plaintiff's cognitive abilities are consistent with a learning disorder. (R. 569).

         On August 8, 2012, Alicia Maki, Ph.D., completed a Form 2506 psychiatric review of the Plaintiff. (R. 584). Dr. Maki noted that the Plaintiff has “[n]o past [history] of mental health [treatment] nor [history] of psych hospitalizations.” (R. 584). Dr. Maki concluded that the Plaintiff's statements as to his disability were partially credible, because the “alleged impairments ...


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