Hankins v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 7/10/2015. (PSM)

FILED
2015 Jul-10 PM 03:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
BRIAN HANKINS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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6:14-cv-1156-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Brian T. Hankins, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
his application for Supplemental Security Income (“SSI”). Mr. Hankins timely
pursued and exhausted his administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Hankins was thirty-two years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a twelfth grade education. (Tr. at 161, 168.)
His past work experiences include employment as a janitor and grass cutter. (Tr. at
166.) Mr. Hankins claims that he became disabled on March 16, 2010, due to

diffuse chronic pain, hypertension, loss of hearing in his right ear, infected lymph
node, gastroesophageal reflux disease, and left knee pain. (Tr. at 161, 165.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until
making a finding of either disabled or not disabled; if no finding is made, the
analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”). See Id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See Id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.

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Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See Id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work. See Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment
or combination of impairments does not prevent him from performing his past
relevant work, the evaluator will make a finding of not disabled. See id.

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The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr. Hankins
has not engaged in substantial gainful activity since the alleged onset of his
disability. (Tr. at 25.) According to the ALJ, Plaintiff’s chronic pain of unknown
etiology is a “severe” impairment based on the requirements set forth in the
regulations. (Id.) However, he found that this impairment neither meets nor
medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.) The ALJ found Mr. Hankins’s impairment does not impose
limitations as mentioned in the listings, and he determined that he has the following
RFC: medium work as defined in 20 C.F.R. § 416.967(c); he experiences moderate
pain with its moderate affect on his ability to concentrate, which occasionally
occurs during an 8-hour workday; he can never climb ladders, ropes, or scaffolds;

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but he can occasionally kneel, crouch, and crawl; and he can frequently balance,
stoop, reach, handle, finger, feel, and climb stairs and ramps. (Id.)
According to the ALJ, Mr. Hankins is capable of performing his past relevant
work as a janitor, which is classified as medium and unskilled. (Tr. at 30.) The ALJ
determined that this work does not require the performance of work-related
activities precluded by Plaintiff’s RFC. (Id.) The ALJ found that Mr. Hankins has
the RFC to perform the physical and mental demands of this work as it is actually
and generally performed. (Id.) The ALJ concluded his findings by stating that
Plaintiff “has not been under a disability, as defined in the Social Security Act,
since June 20, 2011, the date the application was filed.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are

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supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)). “The substantial evidence standard permits administrative decision
makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,

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883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Mr. Hankins alleges that the ALJ’s decision should be reversed and

remanded for several reasons related to his contention that the ALJ improperly
applied Social Security Ruling (“SSR”) 12-2p by not conducting a step-three
analysis regarding whether his fibromyalgia alone or in combination with his
chronic pain would meet or equal listing 14.09D for inflammatory arthritis. (Doc.
10 at 12).
SSR 12-2p recognizes that fibromyalgia is not a listed impairment; therefore,
the ALJ must determine whether fibromyalgia medically equals a listing. SSR 122p, 2012 WL 3104869, at *6 (S.S.A. 2012). Medical equivalence is found in one of
three ways: (1) the claimant has an impairment listed in appendix 1 of subpart P of
part 404 but does not exhibit one or more of the findings at all or as severely as it is
specified for that particular listing; (2) the claimant has an impairment that is not
listed but is closely analogous to a listing because the findings related to his
impairment are of at least equal medical significance to the listing; (3) the claimant
has a combination of unlisted impairments such that, when compared to an
analogous listing, the findings related to his unlisted impairments are of at least

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equal medical significance to the listing. 20 C.F.R. § 416.926(b). Listing 14.09D
identifies the following criteria for a claimant’s impairment to meet or be the
equivalence of inflammatory arthritis:
Repeated manifestations of inflammatory arthritis, with at least two of
the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living
2. Limitation in maintaining social functioning
3. Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.
20 C.F.R. pt. 404, subpt. P, app. 1, § 14.09D.
The claimant bears the burden of showing that his impairments meet or
equal a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991).
The regulations require that he must provide evidence to support his claim. See 20
C.F.R. § 416.912(c). In order to qualify for benefits by showing an unlisted
impairment is equivalent to a listed impairment, the claimant must “present
medical findings equal in severity to all the criteria for the one most similar listing.”
Sullivan v. Zebley, 493 U.S. 521, 531 (1990). A showing that the overall impact of an
unlisted impairment or combination of impairments is as severe as that of a listed
impairment does not qualify a claimant to benefits. (Id.)

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Plaintiff argues that his pain condition equals listing 14.09D for inflammatory
arthritis. As an initial matter, although the plaintiff characterizes his condition as
fibromyalgia, the ALJ, using the opinions of his doctors, concluded at step two that
he had a severe impairment of “chronic pain of unknown etiology,” not
fibromyalgia. (Tr. at 25, 259.) No doctor ever diagnosed Plaintiff with fibromyalgia.
(Tr. at 259, 268.) Plaintiff does not argue that the ALJ erred at step two.
In any event, Plaintiff argues that the ALJ did not articulate his evaluation of
Plaintiff’s pain syndrome as it relates to whether his condition medically equaled
listing 14.09D. However, the ALJ’s lack of discussion does not violate the legal
standards governing medical equivalence. Section 416.926 of the regulations does
not require an articulation of the ALJ’s evaluation for determining medical
equivalence but instead requires the ALJ to “consider all evidence in [Plaintiff’s]
case record about [his] impairment and its effects on [him].” 20 C.F.R. §
416.926(c). The ALJ’s finding “as to whether a claimant meets a listed impairment
may be implied from the record. . . [and] it is not required that the [ALJ]
mechanically recite the evidence leading to [his] determination.” Kalishek v.
Comm’r of Soc. Sec., 470 F. App’x 868, 870 (11th Cir. 2012) (citing Hutchinson v.
Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986)). The Court will not reverse the ALJ’s
decision simply because he did not explain his reasoning for finding that a claimant

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did not meet or equal a listed impairment. Johnson v. Barnhart, 148 F. App’x 838,
842 (11th Cir. 2005); see also Keane v. Comm’r of Soc. Sec., 203 F. App’x 748, 751
(11th Cr. 2006) (upholding the ALJ’s implicit decision that the claimant failed to
establish that his impairment equaled a listing). Plaintiff has not provided any legal
authority requiring the ALJ to provide a more extensive discussion than what he
provided. The ALJ’s finding and discussion on whether Plaintiff’s severe
impairments (which included his chronic pain syndrome) met or equaled a listing
complied with the proper standards.
Additionally, insofar as Plaintiff is arguing that his impairment, by whatever
diagnosis, medically equaled 14.09D, the argument fails. As noted, no doctor ever
diagnosed Plaintiff with fibromyalgia. (Tr. at 259, 268.) Plaintiff sought to establish
medical equivalence through Dr. McFadden’s opinion following his November
2012 clinical pain assessment. (Tr. at 338.) Although the ALJ’s decision afforded
Dr. McFadden’s opinion no weight, it did consider her medical findings. (Tr. at
26.) Dr. McFadden found that Mr. Hankins’s pain condition causes extreme
fatigue and is virtually incapacitating. (Tr. at 338-39.) However, fatigue is only one
of the two required symptoms for listing 14.09D. See 20 C.F.R. pt. 404, subpt. P,
app. 1, § 14.09D. Plaintiff also needed to show that he also suffered from at least
one of the following symptoms: fever, malaise, or involuntary weight loss. See id.

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Plaintiff’s record provides no evidence of such symptoms. In fact, his medical
records demonstrate that Dr. McFadden, as well as Plaintiff’s other treating
physicians, found each additional required symptom absent from Plaintiff. (Tr. at
301, 347.) Further, the plaintiff would have to demonstrate where at least one of the
following limitations occurred: (1) limitation of activities of daily living; (2)
limitation in maintaining social functioning; (3) limitation in completing tasks in a
timely manner due to deficiencies in concentration, persistence, or pace. 20 C.F.R.
pt. 404, subpt. P, app. 1, § 14.09D. Although Dr. McFadden relied on the
plaintiff’s statements regarding his limitations on daily activities, she did not
provide her own opinion as to any limitations. (Tr. at 338-39.) Instead, she notes in
her clinical assessment that “some limitations may be present but not to such a
degree as to create serious problems in most instances.” (Tr. at 338.)1
Plaintiff also notes in passing that Dr. McFadden’s opinion should have been given more
weight by the ALJ. (Doc. 10 at 14-15.) However, this argument was made by Plaintiff in passing;
therefore, the plaintiff waived any argument that the ALJ failed to consider Dr. McFadden’s
opinion. (Doc. 11 at 10.) See Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (11th Cir. 2006)
(noting claimant waived issue because he did not provide supporting arguments or citation to
authorities regarding the claim), N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th
Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and citation to
authorities, are generally deemed to be waived.”). Nevertheless, the ALJ’s decision to discount
the opinion is supported by substantial evidence. The ALJ chose to discount the opinion based on
the fact that it was based primarily on Plaintiff’s subjective complaints and not objective medical
findings. (Tr. at 28, 341.) For instance, Dr. McFadden states Plaintiff can never perform
activities and then notes that Plaintiff reported “never” from past experience of testing and that
Plaintiff and his wife reported Plaintiff could not complete activities of daily living. (Tr. at 28,
339, 341). But see 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and laboratory findings, the more
weight we will give that opinion.”); Crawford, 363 F.3d at 1159 (ALJ can properly discount an
1

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Aside from Dr. McFadden, Mr. Hankins’s other treating physicians also did
not note any limitations imposed on Plaintiff by his condition that are required for a
finding of medical equivalence under listing 14.09D. Dr. Gordon, Plaintiff’s
treating physician from Whatley Health Services, generally treated Mr. Hankins for
acute conditions including swollen lymph nodes and ear pain. (Tr. at 219-29.) Dr.
Gordon’s records do not include any indication of the limitations stated in listing
14.09D. (Id.) In October 2011, Plaintiff was examined by Dr. Mali, a consultative
examiner, who recognized 14 of the 18 tender points for fibromyalgia but noted that
the plaintiff would need further work up and ultimately diagnosed Mr. Hankins
with chronic pain of an unknown etiology, not fibromyalgia. (Tr. at 259.) His
examination reports do not show any indication that Plaintiff’s condition caused
any limitations. (Tr. at 257-59.) Capstone Rural Health Center treated Plaintiff in
opinion apparently based primarily on a claimant’s subjective complaints). Additionally, in
November 2011, Plaintiff reported that he was self-reliant in his usual daily activities in contrast
to the statement relied on by Dr. McFadden, which further undermines Dr. McFadden’s
opinion. (Tr. at 301). Furthermore, as the ALJ noted, Dr. McFadden’s opinion that Plaintiff
could perform less than sedentary work is inconsistent with the remaining medical record. But see
20 C.F.R. § 416.927(c)(4) (“[T]he more consistent an opinion is with the record as a whole, the
more weight we will give to that opinion.”); Crawford, 363 F.3d at 1159-60. Records from
Whatley Health Services from April 2010 to July 2011, document Plaintiff’s diagnoses of chronic
pain syndrome, but do not document objective findings of tenderness and generally show that
Plaintiff sought treatment for acute conditions such as ear pain, swollen node, and flat footedness
(Tr. at 222-26). From to November 2011 to September 2012, Plaintiff had periodic medical
appointments at Capstone Rural Health Center for medication refills where Plaintiff was in no
acute distress and had normal examinations. (Tr. at 28, 294-303). Assuming arguendo Plaintiff
sufficiently raised the argument, the ALJ did not err in discounting Dr. McFadden’s opinion
because it was based primarily on Plaintiff’s own complaints and unsupported by objective
medical findings and was inconsistent with other objective evidence.

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November 2011 and provided him with medication refills until Dr. McFadden saw
him in November of 2012. (Tr. at 294-303.) During this year, Mr. Hankins stated
that he was self-reliant in his daily activities and had no further complaints, only
returning to Capstone for medication refills. (Tr. at 294-99, 301.)
Other evidence in the record suggests that Plaintiff’s condition is not the
medical equivalent of listing 14.09D, inflammatory arthritis. For example, Plaintiff
never presented with a fever, malaise, or involuntary weight loss. (Tr. at 257-59,
294-302, 315-16.) Additionally, the record indicates that he has been functioning
self-sufficiently in his daily life, engaging in house work, occasional cooking, and
showering and dressing himself. (Tr. at 173-74.)
Plaintiff relies on Todd v. Heckler, 736 F.2d 641 (11th Cir. 1984), to support
his argument, but it is distinguishable. In Todd, the court remanded for
development of the record where the claimant was not represented by an attorney
at the administrative hearing and the ALJ had failed to follow the sequential
evaluation process by entirely omitting consideration of whether the claimant met
or equaled a listed impairment. 736 F.2d at 642. Here, the ALJ made an explicit
finding that none of Plaintiff’s impairments alone or in combination met or
medically equaled a listed impairment, and Plaintiff was represented by an attorney
at the administrative level. (Tr. at 25, 35).

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Plaintiff also contends the Appeals Council erred in not specifically
addressing SSR 12-2p and the step three analysis of listed impairments. However,
the Appeals Council stated that it found no reason under the Commissioner’s rules
to review the ALJ’s decision and denied Plaintiff’s request for review. (Tr. at 1).
While Plaintiff may wish the Appeals Council had provided greater articulation for
the reasons denying his request for review, there is no requirement for articulation
when the Appeals Council denies review. See Mitchell v. Comm’r of Soc. Sec., 771
F.3d 780, 784 (11th Cir. 2014) (“Appeals Council is not required to explain its
rationale for denying a request for review . . . .”).
For these reasons, the Court is of the opinion that the ALJ was not required
to articulate his reasoning behind concluding that Plaintiff’s condition was not the
medical equivalent of listing 14.09D. See Hutchinson, 787 F.2d at 1463. The
plaintiff’s impairment is not closely analogous and of equal medical significance to
listing 14.09D because he lacks the required symptoms and limitations of
inflammatory arthritis.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

Hankins’s arguments, the Court finds the Commissioner’s decision is supported by

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substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE and ORDERED on July 10, 2015.

_____________________________
L. Scott Coogler
United States District Judge
160704

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