Wilbanks v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 11/29/2016. (KAM, )
2016 Nov-29 PM 04:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 3:15-cv-01634-JEO
Plaintiff Royal Wilbanks brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying his applications for disability insurance
benefits and Supplemental Security Income (“SSI”). (Doc. 1).1 The case has been
assigned to the undersigned United States Magistrate Judge pursuant to this
court’s general order of reference. The parties have consented to the jurisdiction
of this court for disposition of the matter. (Doc. 15). See 28 U.S.C. § 636(c), FED.
R. CIV. P. 73(a). Upon review of the record and the relevant law, the undersigned
finds that the Commissioner’s decision is due to affirmed.
References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
I. PROCEDURAL HISTORY
On August 1, 2012, Wilbanks protectively filed an application for a period
of disability and disability insurance benefits. (R. 9, 162-63).2 He also
protectively filed an application for SSI. (R. 9, 164-73). He alleged that he was
disabled and unable to work due to an alleged disability beginning July 14, 2012.
(R. 9, 162). Following the initial denial of his applications (R. 9), Wilbanks
requested a hearing before an Administrative Law Judge (“ALJ”). (Id.) The
hearing was held on January 14, 2014. Wilbanks, his counsel, and a vocational
expert attended the hearing. (R. 9, 27). The ALJ issued a decision on February
22, 2013, finding that Wilbanks had not been disabled since July 14, 2012, his
alleged disability onset date. (R. 9-18).
Wilbanks requested the Appeals Council review the ALJ’s decision. (R. 5).
The Appeals Council denied his request for review on July 20, 2015. (R. 1-3). On
that date, the ALJ’s decision became the final decision of the Commissioner.
Wilbanks then filed this action for judicial review under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
References herein to “R.__” are to the page numbers of the administrative record.
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
The court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and SSI under the Social Security Act, a
claimant must show the inability 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.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 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.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Specifically, the
Commissioner must determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)3 (citing 20
C.F.R. § 404.1520(a)(4)). “An affirmative answer to any of the above questions
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
leads either to the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step three, leads to a
determination of ‘not disabled.’” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th
Cir. 1986 ). “Once a finding is made that a claimant cannot return to prior work
the burden shifts to the [Commissioner] to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.; Evans, 551 F. App’x at 524.
Wilbanks alleges disability based on chronic obstructive pulmonary disease
(COPD), coronary artery disease (CAD), back pain and stiffness, leg weakness,
and vision problems. (R. 12-14). He is also obese. (R. 12). He has a limited
education and past relevant work as a security guard, courier, janitor/cleaner, and
fast food clerk. (R. 16, 41).
The ALJ found that Wilbanks had severe impairments of COPD and CAD
status post myocardial infarction. (R. 12). However, the ALJ determined that his
impairments, alone and in combination, did not meet or medically equal the
severity of one of the listed impairments in the Listings.4 (R. 12-13). The ALJ
The Listings are located at 20 C.F.R. pt. 404, subpt. P, app. 1.
then found that Wilbanks had the residual functional capacity (RFC) to perform
light work, subject to the following limitations: “he can have only occasional
exposure to temperature extremes, wetness, humidity, and pulmonary irritants.”
Based on the testimony of the vocational expert, the ALJ determined that
Wilbanks could perform other jobs in the national economy. (R. 17-18; 42-43).
The ALJ thus concluded that Wilbanks was not disabled as that term is defined in
the Social Security Act. (R. 18).
Wilbanks bears the burden of proving that he is disabled and, consequently,
he is responsible for producing evidence in support of his claim. See 42 U.S.C. §§
423(d)(5), 1382c(a)(3)(H)(i) (incorporating § 423(d)(5) for SSI claims); 20 C.F.R.
§§ 404.1512(a),(c), 416.912(a), (c); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (“An individual claiming Social Security disability benefits must prove
that she is disabled.”); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(“the claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim”). Wilbanks must
prove the inability “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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505, 416.905.
Wilbanks did not file a brief in this case despite being on notice that one is
required. Because Wilbanks has not identified any errors in the ALJ’s decision,
the Commissioner asks that the Court affirm his decision. (Doc. 13 at 4).
Additionally, the Commissioner asks that this court affirm the decision of the ALJ
because it is supported by substantial evidence. (Id.)
Here, the ALJ determined that the medical evidence does not support
Wilbanks’s allegations regarding the severity of his physical limitations caused by
his aliments. (R. 14-15). First, with regard to his COPD, the ALJ determined that
Wilbanks had poor pulmonary function readings in October 2012, but these results
were deemed invalid because he did not put forth sufficient effort. (R. 14, 58-59,
283-85, 447-50). Wilbanks was informed that he would be given one more test,
but “full effort” would be required. (R. 59). Testing in December 2012 revealed
significantly higher lung volumes. (R. 14-15, 455-56). The examiner also noted
that Wilbanks “showed cooperation and effort during the testing.” (R.13, 455).
Moreover, the medical evidence includes only infrequent complaints of shortness
of breath, and Wilbanks denied shortness of breath in November 2013. (R. 15,
459). The ALJ also found that the treatment records indicate that medication
controlled his COPD symptoms. (R. 15, 469-601).
The ALJ also evaluated and properly determined that the evidence does not
support Wilbanks’s allegations regarding the severity of his physical limitations
caused by CAD. (R. 15). In November 2009, prior to his alleged onset date,
Wilbanks underwent a left heart catheterization and CT angiography of the heart,
which revealed evidence of mild to moderate coronary artery disease. (R. 15,
313-14, 324, 347-48). Medical records indicate Wilbanks experienced mild
myocardial infarctions in 2009 and 2010. (R. 15, 442). Emergency room records
and treatment notes document intermittent reports of chest pain since his alleged
onset date of disability. (R. 15, 459-601). However, his laboratory testing and
x-rays of his chest show essentially normal cardiovascular results. (Id.) During a
September 2012 consultative examination, Wilbanks had essentially unremarkable
cardiovascular signs. (R. 15, 443). An electrocardiogram (EKG) performed on
November 14, 2013, showed a normal sinus rhythm. (R. 15, 460). On November
15, 2013, he underwent a left heart catheterization and CT angiography of the
heart, which revealed no flow-limiting lesions. (R. 504). Despite his respiratory
and cardiovascular problems, Wilbanks also participated in hunting and fishing;
he prepared his own meals, mowed the lawn, and performed household chores;
and he continued to smoke. (R. 15, 266-72).
The non-examining state agency consultants’ opinions also support the
ALJ’s decision in this instance. (R. 15-16). See 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c), 404.1527(e)(2), 416.912(b)(6), 416.913(c), 416.927(e)(2); SSR
96-6p (http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-06-di-01.html). For
instance, on October 18, 2012, Dr. Hilda Martin opined that Wilbanks did not
establish that he had a severe respiratory impairment because his pulmonary
functioning test results were invalid. (R. 15, 58-59). On October 19, 2012, Dr.
Jerda Riley opined that Wilbanks did not establish that he has a severe visual
impairment. (R. 15, 59-60). On October 24, 2012, Dr. Mila Bascalla opined that
the evidence was insufficient to assess that Wilbanks had a medically
determinable back impairment. (R. 15, 60). On November 3, 2012, Dr. L. Barnes
opined that there was insufficient medical evidence to assess the severity of
Wilkins’s heart condition and diabetes. (R. 15, 61). On November 7, 2012,
psychological consultant J.V. Rizzo, Ph.D., opined that the record does not show a
“current, severe mental impairment or indicate the need for further development.”
(R. 15-16, 61). On December 6, 2012, Dr. Samuel Chastain opined that Wilbanks
could perform a range of medium work. (R. 16, 62-64). The ALJ found Wilbanks
more limited than was opined by some the consultative examiners. Specifically,
he found that Wilbanks could perform a range of light work and is not disabled.
(R. 13-16). The foregoing opinions still support the ALJ’s finding that Wilbanks
was not disabled.
For the reasons set forth above, the undersigned concludes that the
Commissioner’s decision is due to be affirmed. An appropriate order will be
DONE, this the 29th day of November, 2016.
JOHN E. OTT
Chief United States Magistrate Judge
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