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Edgar v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

April 17, 2018

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


          GARY R. JONES United States Magistrate Judge

         Plaintiff appeals to this Court from a final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security Act (“the Act”). (ECF No. 1.) The Commissioner has answered, (ECF No. 8), and both parties have filed briefs outlining their respective positions. (ECF Nos. 15, 19.) For the reasons discussed below, it is recommended that the Commissioner's decision should be affirmed.


         Plaintiff protectively filed his application for Title XVI benefits on February 27, 2014, alleging a disability onset date of January 1, 2010, due to chronic obstructive pulmonary disease (“COPD”), emphysema, hip problems, back injury, shoulder injury, migraines, acid reflux, and colon issues. (R. 142-49, 167-76.) His application was denied initially and upon reconsideration. (R. 81-83, 93-97.) Following a hearing on March 15, 2016, an Administrative Law Judge (“ALJ”) issued a written decision on May 16, 2016, finding Plaintiff not disabled. (R. 18-32.) The Appeals Council thereafter denied Plaintiff's request for review. (R. 1-4.) Plaintiff subsequently appealed the ALJ's decision to this Court. (ECF No. 1.)


         The Commissioner's findings of fact are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g) (2012). Substantial evidence is more than a scintilla, i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

         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, 937 F.2d at 584 n.3; 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, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court must also consider evidence detracting from evidence on which the Commissioner relied). However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1) (2012); 20 C.F.R. § 416.905 (2015).[1] The impairment must be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity which exists in the national economy. § 423(d)(2); 20 C.F.R. §§ 416.905-416.911.

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. § 416.920. The claimant has the burden of proving the existence of a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). First, if a claimant is working at a substantial gainful activity, she is not disabled. § 416.920(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. § 416.920(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. § 416.920(d). Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. §§ 416.920(e)-(f). Fifth, if a claimant's impairments (considering her residual functional capacity (“RFC”), age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled. § 416.920(g).

         The burden of proof regarding the plaintiff's inability to perform past relevant work initially lies with the plaintiff. Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The burden then temporarily shifts to the Commissioner to demonstrate that “other work” which the claimant can perform currently exists in the national economy. Doughty, 245 F.3d at 1278 n.2.[2] The Commissioner may satisfy this burden by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive determination that a claimant is disabled or not disabled. Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the Commissioner to show that the claimant can perform other work.”).


         A. Medical Records

         Plaintiff presented to the VA in November 2013 requesting alcohol detox following several weeks of excessive daily drinking. (R. 626-47.) Plaintiff's “active problems list” included COPD, vitamin D deficiency, tobacco use disorder, pain in joint involving shoulder region, migraines, low back pain, gastroesophageal reflux disease (“GERD”), and alcohol abuse. Plaintiff also reported smoking one to two packs of cigarettes per day and occasional marijuana use. At the time, however, Plaintiff had no headaches, chest pain, palpitations, trouble breathing on exertion, cough, shortness of breath, or wheezing. Plaintiff also ambulated well without assistance. Physical examination was normal. Plaintiff was assessed with alcohol and nicotine dependence and a GAF score of 35-45, and referred for substance abuse treatment. (R. 616-22, 639-40.)

         In December 2013 Plaintiff returned to the VA with complaints of possible pneumonia and low back pain (R. 451-58.) He also reported that his migraines were no better on gabapentin and requested to see a specialist for headaches. He denied chest pain, shortness of breath, and headaches. Physical examination was normal and he had normal sensory and motor skills in all extremities. A neurology consult was placed for migraines. X-rays later than month revealed COPD, but no acute pulmonary disease or significant changes. (R. 676-77.)

         Plaintiff presented to the Cardiology Clinic at the VA for a new patient consultation in January 2014. (R. 431-35) He reporting having a history of left sided chest pain, but advised that he only had the pain several times a week when sitting and that the pain only lasted up to a few minutes. He also reported that the pain had gotten better since he stopped drinking. Plaintiff said he did a lot of walking and that he had no chest pain while walking. Physical examination was normal. A cardiac computed tomography angiogram (“CTA”) revealed normal findings. (R. 672-74.)

         Plaintiff also had a neurology consultation in January 2014 for his migraines. (R. 396-99.) He reported that Sumatriptan aborted his migraines if he was able to catch them early. Examination revealed normal motor strength, except in Plaintiff's right shoulder, and normal reflexes, muscle tone, posture, stance, stride, and turns.

         In March 2014 Plaintiff began complaining of pain in the upper left leg, which was worse with walking, and occasional left hip and knee pain (R. 355-58.) Cardiovascular, pulmonary, and neurological examinations were normal. Plaintiff had some tenderness in his left thigh but nonetheless had good range of motion, normal pulses, no edema, and no cyanosis in his left leg. There was no edema or erythema in his left knee or hip, his range of motion was intact, and his strength was equal bilaterally. An x-ray of Plaintiff's left hip revealed degenerative arthritis and irregular sclerosis involving the neck of the left femur, but no fracture or dislocation. (R. 669-70.) An x-ray of Plaintiff's left knee showed mild osteopenia, but normal joint spaces, no bone erosion, and no evidence of fracture or dislocation

         Plaintiff returned to the VA later that month with complaints of left lower back pain and some pain in his left thigh (R. 341-48.) Plaintiff reported injuring his back in the 1980's and that he had recently been doing some volunteer work that involved bending over. He advised that baclofen helped “a little” with his pain. Plaintiff demonstrated an abnormal gait. He also had limited flexion and limited lateral bending. There was no motor atrophy, however, and Plaintiff had no numbness or pain. An MRI of his left hip was normal (R. 325-27, 342, 355, 665-66.) An x-ray of his lumbar spine, however, revealed prominent L5-S1 disc degenerative changes but no compression fractures or subluxations (R. 668.) Plaintiff was therefore referred for a physical therapy consultation. (R. 340.)

         A colonoscopy in March 2014 revealed diverticulosis in the sigmoid colon, but was otherwise incomplete because multiple diverticula, tortuous sigmoid, and an inability to visualize lumen prevented further advancement. (R. 777.) A subsequent CT colonography was incomplete in the sigmoid colon due to poor gaseous distention from bowel wall thickening related to chronic diverticulosis, but unremarkable in the remainder of the bowel. (R. 338-39.)

         In April 2014 Plaintiff met with a vocational rehabilitation counselor. (R. 336.) Plaintiff advised that he was interested in educational opportunities instead of employment opportunities. The counselor therefore determined that Plaintiff was not “a good candidate for Vocational Rehabilitation services as the Veteran doesn't wish to work at this time. Veteran wishes to attend a training program.” (Id.)

         In June 2014 Plaintiff returned to the VA complaining of headaches and sinus congestion (R. 713-17.) He had no problems breathing, however, and no chest pain. Plaintiff also continued to smoke cigarettes. Physical examination was largely normal. Subsequent chest x-ray showed COPD, but no pulmonary infiltrates, masses, or pleural or mediastinal disease (R. 1072-73.)

         During a biopsychosocial examination in July 2014 Plaintiff reported that he wanted to start drinking again after being sober for nine months. (R. 1235-39.) Plaintiff asked to be admitted to psychiatry services because otherwise he would go home and drink. The examination notes state that Plaintiff had been diagnosed with major depressive disorder and that he was currently being followed by psychology. Plaintiff was ...

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