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Baker v. Berryhill

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

June 1, 2018

CHERIE LYNN BAKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          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 disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to Title II and Title XVI, respectively, of the Social Security Act. (ECF No. 1.) The Commissioner has answered, (ECF No. 9), and both parties have filed briefs outlining their respective positions. (ECF Nos. 16, 19.) For the reasons discussed below, it is recommended that the Commissioner's decision should be affirmed.

         I. PROCEDURAL HISTORY

         Plaintiff protectively filed applications for Title II DIB and Title XVI SSI benefits, alleging a disability onset date of November 1, 2009. (R. 82-83, 186-93.) Plaintiff claims she cannot work due to lower back pain, a problem with her right leg, sinus problems, diabetes, and high blood pressure. (R. 221.) Her applications were denied initially and upon reconsideration. (R. 84-85, 114-15.) Following a hearing on May 25, 2016, an Administrative Law Judge (“ALJ”) issued a written decision on July 8, 2016, finding Plaintiff not disabled. (R. 10-47.) The Appeals Council thereafter denied Plaintiff's request for review. (R. 1-6.) Plaintiff subsequently appealed the ALJ's decision to this Court. (ECF No. 1.)

         II. STANDARD OF REVIEW

         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. §§ 404.1505, 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. §§ 404.1505-404.1511, 416.905-416.911.

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 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. §§ 404.1520(b), 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. §§ 404.1520(c), 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. §§ 404.1520(d), 416.920(d). Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. §§ 404.1520(e)-(f), 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. §§ 404.1520(g), 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]

         III. SUMMARY OF THE RECORD

         A. Medical Records

         Plaintiff treated predominantly with Echo Community Health Care in 2012 and 2013. On examination in February 2012, September 2012, October 2012, January 2013, February 2013, and July 2013, Plaintiff was cooperative, alert, oriented, and had normal affect and good eye contact. (R. 326, 329, 332, 335, 337, 341, 344-45.)

         In August 2013, despite being tearful and sad following the recent deaths of two friends, Plaintiff was nevertheless cooperative, alert, oriented, and had normal affect and good eye contact. (R. 323.) She was also cooperative, alert, oriented, and had normal affect and good eye contact in October 2013, but did report some recent back pain after starting a new job at a café. (R. 319-20.)

         Approximately five months later, in March 2014, Plaintiff first reported insomnia, difficulty concentrating, irritability and moodiness, anxiety, and depression. (R. 372.)

         She later presented to William E. Benet, Ph.D., Psy.D., for a consultative psychological evaluation on April 10, 2014. (R. 376-79.) Plaintiff reported severe back pain and depression, manifested by depressed mood, crying episodes, insomnia, difficulty concentrating, and social withdrawal. She told Dr. Benet that she had been unemployed since November 2013 due to back and leg pain. At some point she also divorced her ex-husband because he was verbally abusive. Plaintiff reported not having many friends locally, having just moved to Florida from Indiana. Her favorite activity was reading murder mysteries. She also read the Bible.

         On examination Plaintiff was alert, oriented, friendly, and cooperative. Eye contact was good and gait and motor activity were normal. Plaintiff's speech was clear, coherent, and relevant. Plaintiff was “very articulate, ” and “had no difficulty understanding and responding to questions or sustaining conversation.” (R. 378.) Her thinking was organized and goal directed, without suicidal thoughts, and perceptions were adequate. Plaintiff's mood, however, was depressed and her affect congruent. Attention and concentration varied. Immediate recall was above average for her age, but delayed recall was poor. Verbal reasoning was average, as was her general intellectual ability. Judgment and insight were adequate. Dr. Benet assessed Plaintiff with mood disorder, not otherwise specified, and a GAF score of 50-55.

         Over a year later, in October 2015, Plaintiff presented to Palms Medical Group with complaints of anxiety and back pain. (R. 413-17.) She reported having difficulty concentrating, but also reported that over the last two weeks she was not bothered at all by trouble concentrating on things, such as reading or watching television. On examination she appeared oriented, but anxious and hypomaniac with inappropriate mood and affect. She was assessed with general anxiety and prescribed Paroxetine.

         A later psychiatric examination in November 2015 was normal. (R. 409-12.) The doctor switched her medication to Zoloft, however, because the Paroxetine had caused leg cramps and aches.

         By February 2016, Plaintiff reported that her anxiety was “well controlled, ” that she was very pleased with Zoloft, and that she had not had any panic attacks while on the Zoloft. (R. 404-407.) Although she continued to report anxiety, feeling down and depressed, and having difficulty sleeping, she did not report having problems with concentration. On examination her memory appeared normal, and she was oriented with appropriate mood and affect.

         B. Opinion Evidence

         In April 2014, based on his consultative psychological evaluation of Plaintiff, Dr. Benet opined that Plaintiff “should be able to perform work- related mental tasks involving understanding and memory, social interaction and adaptation but is likely to have moderate to marked difficulty in performing tasks involving sustained concentration and persistence.” (R. 378.) Plaintiff also “should be capable of managing her benefits.” (R. 379.) Finally, Dr. Benet opined that “[s]ignificant improvement in mood may be expected with psychiatric treatment and supportive psychological counseling addressing the verbal abuse [Plaintiff] experienced when she was married.” (Id.)

         C. Work History Evidence

         Plaintiff previously worked as a waitress at various restaurants. (R. 253.) Plaintiff also worked as a cashier in 2006, 2009, and 2012. (R. 222, 253.) Specifically, Plaintiff worked as a cashier at a gas station for six months in 2006 and approximately four months in 2009. (Id.) In 2006 her total earnings were $2, 907.66. (R. 209.) Her total earnings in 2009 were $6, 945.05. (R. 210-11.) ...


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