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Raye v. Berryhill

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

July 5, 2018

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



         Plaintiff appeals to this Court from a final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for a period of disability, Disability Insurance Benefits, and Supplemental Security Income pursuant to the Social Security Act. ECF No. 1. The Commissioner has answered, and both parties have filed briefs outlining their respective positions. ECF Nos. 9, 16, 17. For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.


         Plaintiff's March 2012 applications alleged disability beginning in December 2011. R. 240-46, 347-52. Her applications were denied initially and upon reconsideration. R. 137-44, 145-94, 216-40. Following an initial hearing, an administrative law judge (“ALJ”) issued a decision unfavorable to Plaintiff in November 2013, finding that Plaintiff was capable of performing her past relevant work as a home health attendant. R. 199-206. In March 2015 the Appeals Council granted review and remanded Plaintiff's case for further consideration. R. 212-14. A different ALJ issued a second unfavorable decision. R. 14-33. The Appeals Council denied Plaintiff's request for review. R. 1-7.

         Plaintiff then filed the instant appeal. ECF No. 1. Plaintiff argues that the ALJ erred in evaluating her subjective complaints, that the ALJ failed to develop the record, and that she should have been found disabled because the ALJ's residual functional capacity (“RFC”) finding is not supported by the record, in light of her combined impairments. ECF No. 16.


         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 (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.

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

         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]


         A. ALJ's Decision

         The ALJ determined that Plaintiff has the severe impairments of a seizure disorder, obesity, hypertension, degenerative disc disease of the lumbar spine, COPD, status post cerebrovascular accident (CVA) with residual effects (including hemiplegia), and chronic pain syndrome. R. 19. Plaintiff does not have an impairment or combination of impairments that meets or equals the listings. R. 20. The ALJ determined that Plaintiff has the RFC for light work, with additional exertional, postural, environmental, and mental limitations. Id. The ALJ concluded that Plaintiff's subjective complaints regarding the limiting effects of her impairments were not entirely consistent with the objective medical evidence. Upon evaluating the additional factors that must be considered when assessing the persuasiveness of subjective complaints, the ALJ concluded that Plaintiff's subjective complaints and alleged limitations were not fully persuasive. R. 23-25. To support this finding, the ALJ extensively discussed the relevant medical evidence, including the assessment of an examining consulting physician, Dr. Eftim Adhami, and the opinions of non-examining consultants who concluded that Plaintiff could perform work at greater than the light exertional level. R. 21-25.

         The ALJ determined that Plaintiff was unable to return to her past relevant work as a Resident Care Aide, which she had performed at the “very heavy” exertional level. Based upon the testimony of a VE, the ALJ determined that in view of Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as office helper, mail clerk, and router. The ALJ therefore found that Plaintiff was not disabled. R. 26-27.

         B. Medical and Opinion Evidence

         The records that are relevant to Plaintiff's claims in this appeal may be summarized as follows. Plaintiff was treated from January 2011 through May 2013, at Putnam Community Medical Center for complaints relating to hypertension, recurrent seizures, and headaches. Plaintiff's CT scans were negative for intracranial hemorrhage, subdural collections, or focal abnormalities. R. 462-63; 566-67.

         Plaintiff was treated at UF/Shands between October 27, 2011, and January 5, 2012, for treatment of her seizure disorder. An EEG was normal and negative for epileptiform discharges. R. 483-84.

         From May 2012 to late 2015, Plaintiff was treated at Family Medical and Dental Centers/Azalea Health for localized osteoarthritis of the right ankle, hypertension, seizure disorder, COPD and chronic pain syndrome. R. 472-73. Clinic notes reflect that her COPD and chronic pain were fairly well-controlled with medication. Plaintiff was counseled on the importance of medication compliance and smoking cessation. In December 2013, Plaintiff reported having a generalized tonic-clonic seizure for the first time in six months. Her medication was increased and was increased again at a follow-up visit after she had a nocturnal seizure. Her medication was adjusted after Plaintiff reported drowsiness. In February 2014, Plaintiff reported having no further seizures but she complained of drowsiness. R. 680-794.

         In February 2015, Plaintiff was treated at Putnam Community Medical Center for complaints of slurred speech and facial droop. She was treated for acute CVA (stroke) as well as breakthrough seizures and hypertension. Clinic notes reflect that she had subtherapeutic levels of her medication. A consulting neurologist assessed that Plaintiff's breakthrough seizures were “likely due to subtherapeutic Dilantin level as well as noncompliance with anticonvulsant medications.” R. 808. Plaintiff was discharged in stable condition with a referral for physical therapy and recommendations to quit smoking and maintain medication compliance. R. 809-28.

         The day after her discharge, Plaintiff presented at UF/Shands with the same complaints and was treated for two more days. Her EEG was normal, but imaging confirmed a subacute infarct in the right basal ganglia and right thalamus. The neurologist observed that Plaintiff had “no significant disability” and that she was able to “carry out all usual activities”, despite some symptoms. She was discharged in good condition, with recommendations to stop smoking and maintain medication compliance. Plaintiff followed up at Azalea where she exhibited mildly impaired short-term memory and non-dominant left-sided weakness with slight gait abnormality. R. 755-60; 922-44.

         Plaintiff presented to the emergency department on other occasions in 2014-15 for complaints of breakthrough seizures and/or back pain. R. 832-33, 836-38, 844-46. Treatment records from April 2015 reflect that Plaintiff had not complied with lifestyle changes such as smoking cessation, diet, and exercise, nor had she followed through with referrals to an internist, for lab work, and an EEG. R. 680-794, 848, 1056, 1057-59. The notes state that Plaintiff would “run out of anti-epileptic drugs and will go days up to one week before refilling them” and noted her seizures were “refractory due to intermittent non-adherence to medication.” R. 764. July 2015 treatment notes reflect that a second anti-seizure medication would be added to ...

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