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Lewis v. Commissioner of Social Security

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

September 27, 2019

Richard Duane Lewis, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          Patricia D. Barksdale United States Magistrate Judge

         Richard Lewis brings this action under 42 U.S.C. §§ 405(g) and 1383(c) to review a final decision of the Commissioner of Social Security denying his applications for benefits. Under review is a decision by an Administrative Law Judge (“ALJ”) dated April 12, 2017. Tr. 16–24. Summaries of the law and the administrative record are in the ALJ’s decision, Tr. 16–24, and the parties’ briefs, Docs.16, 17, and not fully repeated here.

         I. Arguments

         Lewis argues (1) the ALJ failed to comply with an Appeals Council’s order, (2) the ALJ erred in considering his testimony, (3) the vocational expert’s (“VE’s”) testimony is unsupported by substantial evidence and inconsistent with the Dictionary of Occupational Titles (“DOT”), (4) the ALJ erred in finding his anxiety not severe and including no mental limitation in the residual functional capacity (“RFC”), and (5) the inability to afford a surgical evaluation should not be held against him. Doc. 16.

         II. Background

         The Appeals Council vacated a previous decision by the ALJ, Tr. 140–58, because the ALJ had failed to provide post-hearing evidence to Lewis and notice of the right to request a supplemental hearing and had listed no jobs at step five. Tr. 159–61. The Appeals Council remanded the case to the ALJ and directed him to ensure the record is complete and Lewis has a chance to review it; further consider Lewis’s maximum RFC and provide rationale for any limitations; and, “if warranted by the expanded record, obtain supplemental evidence from a” VE. Tr. 161. The ALJ conducted another hearing and issued another decision finding no disability. Tr. 16– 24, 72–89. In the second decision, the ALJ incorporates by reference the summary of medical evidence from the first decision. See Tr. 21.

         The ALJ found Lewis has severe impairments of lumbar degenerative disc disease, right shoulder tendinosis status post acromioplasty, and obesity, with pain mostly from a 20-foot fall at Suwanee Springs in 2009. Tr. 19, 61. The ALJ discussed the new medical evidence, Tr. 20–21, and for the RFC, found Lewis could perform light work with additional limitations:

[H]e requires a sit/stand option every 30 minutes; no climbing of ladders/ropes/scaffolds but he can occasionally climb ramps/stairs, balance, stoop, kneel, crouch and crawl; no overhead reaching; no concentrated exposure to extreme heat or vibrations; no work around moving mechanical parts or work at unprotected heights.

Tr. 20.

         III. Standard of Review

          A court reviews the Commissioner’s factual findings for substantial evidence. 42 U.S.C. § 405(g). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency’s factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and alteration omitted). “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.”Id.“Substantial evidence … is more than a mere scintilla. … It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Id. (internal quotation marks omitted).

         If substantial evidence supports an ALJ’s decision, a court must affirm, even if other evidence preponderates against the factual findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner’s judgment. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         The substantial-evidence standard applies only to factual findings. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). “[N]o similar presumption of validity attaches to the … conclusions of law.”Id.

         “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). If “remand would be an idle and useless formality, ” a reviewing court need not “convert judicial review of agency action into a ping-pong game.” N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969). An erroneous factual statement by an ALJ may be harmless. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983); Majkut v. Comm’r of Soc. Sec., 394 F. App’x 660, 665 (11th Cir. 2010).

         IV. Law and Analysis

         A. Compliance with Remand Order and RFC Determination

         Under a heading titled, “The ALJ Failed to Comply with the Appeal’s Council’s Order Regarding Post-Hearing Medical Evidence, ” Lewis contends the evidence submitted after the first hearing on back and shoulder impairments warranted “further consideration, ” and whether the ALJ properly considered those impairments is unclear. Doc. 16 at 12–13. The Commissioner responds:

As the ALJ explained, the Appeals Council remanded the earlier ALJ decision because, subsequent to the hearing, the ALJ received medical records that were not proffered to Plaintiff and Plaintiff was not advised of his right to request a supplemental hearing. The Appeals Council’s order also noted that the earlier ALJ decision failed to identify any jobs in the national economy that Plaintiff could perform.
Plaintiff has not alleged that the second ALJ decision contains either of these two errors. … Rather, Plaintiff appears to concede he did have an opportunity to review the records and question and received a supplemental hearing, but merely believes that the ALJ should have concluded Plaintiff’s back and shoulder impairments resulted in limitations in excess of the assessed RFC. Nothing in the Appeals Council’s remand order directed the ALJ to find specific back or shoulder limitations. Thus, there is no error.

Doc. 17 at 5 (citations omitted).

         The Commissioner is correct. The ALJ did not fail to comply with the Appeals Council’s order. The Court therefore construes Lewis’s argument as challenging the RFC.

         A claimant’s RFC is the most he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The Social Security Administration (“SSA”) uses the RFC at step four to decide whether the claimant can perform any past relevant work and, if not, at step five with other factors to decide whether there are other jobs in significant numbers in the national economy he can perform. 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(5). The “mere existence” of an impairment does not reveal its effect on a claimant’s ability to work or undermine RFC findings. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). The ALJ need not defer to any medical opinion about the RFC. See 20 C.F.R. §§ 404.1527(d)(3) (2012), 416.927(d)(3) (2012).

         An ALJ must consider all relevant record evidence. 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3). But “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision … is not a broad rejection which is not enough to enable [the Court] to conclude that [the ALJ] considered [the claimant’s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal quotation marks omitted).

         Substantial evidence, as detailed in the ALJ’s decision and the Commissioner’s brief, supports the RFC.[1] Moreover, as the ALJ observed, “It is also not insignificant that none of the claimant’s treating or examining physicians rendered an opinion that is consistent with a finding that the claimant has been unable to perform substantial gainful activity for a period of 12 or more months.”[2] Tr. 22.

         Lewis contends the ALJ adopted the summary of medical evidence from the first opinion, which found “there is no evidence of radiculopathy, ” even though Michael Ukaegbu, M.D., diagnosed radiculopathy in the back and shoulder in December 2016 and January 2017, respectively. Doc. 16 at 13–14. He argues the ALJ “disregarded” findings from 2016 MRIs based on an outdated 2011 straight-leg test. Doc. 16 at 14.

         Besides incorporating the summary of medical evidence from the first decision, the ALJ added in the new decision this statement about a March 2016 lumbar MRI: “As noted in the previous decision, [Lewis] has had normal straight leg raising tests which are used to assess radicular pain. Since these tests were routinely negative, there is no real correlation with what is suggested on the lumbar spine MRI study.” Tr. 22. While the ALJ may have not included radiculopathy as a diagnosis, he did note possibly related symptoms of numbness and tingling, Tr. 21, and other pain, Tr. 22 (“He reported increased thoracic back pain and itching/tingling in his hands over the last month in January 2017.”). What limitations Lewis thinks should have been included are unclear. Given there appears to be only one straight leg raising test in the record, see Tr. 508, the ALJ’s description of the ...


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