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Ward v. Commissioner Social Security

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

October 15, 2019

ALICIA WARD, Plaintiff,



         This is an appeal of the administrative denial of supplemental security income (SSI) and disability insurance benefits (DIB).[1] See 42 U.S.C. §§ 405(g), 1383(c)(3). Plaintiff argues that her case should be remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g), because the Administrative Law Judge (ALJ) failed to fully develop the administrative record and erred in his determination of Plaintiff's residual functional capacity (RFC). Plaintiff also contends the Appeals Council (AC) erred by denying review of the ALJ's decision. After considering Plaintiff's arguments (doc. 19, 22), Defendant's response (doc. 21), and the administrative record (doc. 11), I find the Commissioner's decision is supported by substantial evidence. I affirm.

         A. Background

         Plaintiff Alicia Ward was 38 years old on her alleged disability onset date of August 28, 2013. (R. 45) She has a tenth-grade education and past work experience as a kitchen manager, warehouse worker, driver, housekeeper, and hairstylist. (Id.) Based on Plaintiff's earnings history, the ALJ found she had engaged in substantial gainful activity in 2015, when she made $16, 084.10 working as a driver and detailer for a car rental company. (R. 37) But because there was “a continuous 12-month period during which the claimant did not engage in substantial gainful activity, ” the ALJ continued through the sequential analysis to “address the period the claimant did not engage in substantial gainful activity.” (Id.)

         Plaintiff, her 23-year-old daughter, and her 9-year-old son were evicted from their apartment, and at the time of the hearing, they were living with Plaintiff's sister. (R. 63-64) Plaintiff's daughter helped take care of her, and her sister drove her places. Plaintiff is five feet four inches tall and weighs 270 pounds. When Plaintiff was 14 years old, she suffered a gunshot wound to her stomach. (R. 58, 67) She did not seek therapy then and suffers from PTSD as an adult based on that incident. (R. 67) Plaintiff alleges disability due to PTSD, panic attacks, schizophrenia, and bipolar disorder. She says she quit working because “I would get paranoia and scared to leave my home. So, my supervisor fired me.” (R. 59) Plaintiff was fired as a warehouse worker and a kitchen manager because she would just leave without clocking out. She “wanted to go home. . . . I couldn't breathe. I started having - hyperventilating, hearing voices. And hearing voices - you know, in my head. Hearing my baby cry. And I just left and went home.” (R. 75)

         She testified she is “never alone, I can't be by myself.” (R. 62) In fact, she is so scared to leave the house that there are gaps in her medical treatment because she felt too afraid to go to her appointments. (R. 65) Plaintiff has no friends and spends her time drawing with her son, reading her Bible, watching the news, and hanging out with her adult daughter. (R. 62) She testified that she spends her day “[w]ondering how I'm going to get through the day.” (R. 61) She was Baker Acted in June 2017, due to auditory hallucinations of babies crying and gunshots. (R. 66) In her words, “I'm scared of getting shot, something is going to happen to me, I'm not going to return back home.” (R. 67)

         After a hearing, the ALJ found Plaintiff has the severe impairments of “back pain, hypertension, obesity, an anxiety disorder, a schizoaffective disorder, and a post-traumatic stress disorder (PTSD).” (R. 37) Aided by the testimony of a VE, the ALJ determined Plaintiff is not disabled as she has the RFC to perform light work. (R. 40) Specifically, the ALJ found:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she needs to avoid ladders or unprotected heights; needs to avoid the operation of heavy, moving machinery; needs a low-stress work environment, meaning no production line; needs simple tasks; needs to avoid contact with the public; can occasionally bend, crouch, kneel, stoop, squat, or crawl; and needs a mono-cane for ambulation.

(R. 40) The ALJ found that, with this RFC, Plaintiff is unable to perform her past relevant work but is able to work as a marker, router, document preparer, addresser, and cutter and paster. (R.46)

         Plaintiff submitted additional evidence to the AC after the ALJ's February 27, 2018, decision: a letter from mental health provider Chrysalis Health dated July 11, 2018, and treatment records from Chrysalis Health dated July 17-24, 2018. (R. 8-25) The AC incorporated the additional evidence into the administrative record yet denied Plaintiff's request for review. Plaintiff, having exhausted her administrative remedies, filed this action.

         Meanwhile, on December 6, 2018, she also filed new applications for SSI and DIB. The Commissioner granted these applications and awarded Plaintiff benefits as of the amended onset date of February 28, 2018, the day after the ALJ's decision in this case. Plaintiff attaches the Commissioner's favorable decision to her brief “to support Ms. Ward's claim that there was a probability of a different outcome had the case been remanded by the AC.” (Doc. 19 at 3, fn. 1).

         B. Standard of Review

         To be entitled to DIB and/or SSI, a claimant must be unable to engage “in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “‘physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

         The Social Security Administration, to regularize the adjudicative process, promulgated detailed regulations that are currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Under this process, the Commissioner must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits her ability to perform work-related functions); (3) whether the severe impairment meets or equals the medical criteria of Appendix 1, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner's determination of claimant's RFC, whether the claimant can perform her past relevant work; and (5) if the claimant cannot perform the tasks required of her prior work, the ALJ must decide if the claimant can do other work in the national economy in view of her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f), (g); 20 C.F.R. § 416.920(f), (g).

         In reviewing the ALJ's findings, this Court must ask if substantial evidence supports those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ's factual findings are conclusive if “substantial evidence consisting of relevant evidence as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citation and quotations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds the evidence preponderates against the ALJ's decision. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner's “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at 1066 (citations omitted).

         C. Discussion

         Plaintiff argues the ALJ failed to develop the medical record and formulated an improper RFC, and the AC erred in denying review of her claim. 1. Full and fair record Plaintiff's first argument is multi-pronged: the ALJ failed to fully develop the record regarding her physical impairments; the ALJ should have consulted a medical expert to resolve an alleged conflict in her mental impairment diagnoses; and the ALJ erred in not subpoenaing records from Chrysalis Health that Plaintiff tried in vain to get on her own. The Commissioner maintains that the ALJ fulfilled his duty and that his decision is supported by substantial evidence.

         The ALJ has a basic duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2005). In determining whether the ALJ abided this duty, courts consider whether the record reveals evidentiary gaps that result in unfairness or clear prejudice. Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997). But the claimant “bears the burden of proving [s]he is disabled, and, consequently, [s]he is responsible for producing evidence to support [her] claim.” Id. Here, the ALJ fulfilled his duty to develop the record of Plaintiff's physical impairments. As Plaintiff points out, her record of treatment for her physical impairments stops on March 4, 2015, when she went to a follow-up appointment at Dunn Avenue Family Practice, her primary care provider.[2] Yet Plaintiff's hearing before the ALJ was in January 2018, almost three years later. Although Plaintiff argues this creates an evidentiary gap the ALJ was duty-bound to address, Plaintiff filed for disability based on her mental impairments only, not her physical ones. (R. 298)

         Plaintiff did not allege any physical impairments in her benefits application or in any of the subsequent agency reports. (R. 298, 332, 348) At her hearing Plaintiff did not testify about her physical conditions (other than she cannot sweep or mop “because of my back, ” R. 61), and her attorney did not question her about any. (R. 64-68) An ALJ “is under no obligation to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.” Street v. Barnhart, 133 Fed.Appx. 621, 627 (11th Cir. 2005) (citation and quotation omitted) (foreclosing plaintiff's argument that the ALJ failed to make findings about her mental impairments, because plaintiff did not allege any as the basis for disability either in his application for benefits or at his hearing). Despite this, the ALJ reviewed all of Plaintiff's treatment notes in the record and included ...

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