Dees v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner denying plaintiff's benefits is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 4/24/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL F. DEES, SR.,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 16-00450-N
MEMORANDUM OPINION AND ORDER
Plaintiff Michael F. Dees, Sr. brought this action under 42 U.S.C. § 405(g)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying his application for a period of disability and
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. § 401, et seq. With the consent of the parties, the Court has designated the
undersigned Magistrate Judge to conduct all proceedings and order the entry of
judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of
Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 19, 21).
Upon consideration of the parties’ briefs (Docs. 14, 17) and those portions of
the administrative record (Docs. 8 – 13) (hereinafter cited as “(R. [page number(s) in
lower-right corner of transcript])”) relevant to the issues raised, and with the
benefit of oral argument held April 13, 2017, the Court finds that the
Commissioner’s final decision is due to be AFFIRMED under sentence four of §
On April 9, 2014, Dees filed an application for a period of disability and DIB
with the Social Security Administration (“SSA”), alleging disability beginning
February 1, 2012.1 After his application was initially denied, Dees requested a
hearing before an Administrative Law Judge (“ALJ”) with the SSA’s Office of
Disability Adjudication and Review. Ultimately, three hearings were held on Dees’s
application, on November 3, 2014, July 20, 2015, and February 3, 2016. On June 2,
2016, the ALJ issued an unfavorable decision on Dees’s application, finding his “not
disabled” under the Social Security Act and thus not entitled to benefits. (See R. 13
– 29). The Commissioner’s decision on Dees’s application became final when the
Appeals Council for the Office of Disability Adjudication and Review denied Dees’s
request for review of the ALJ’s decision on August 2, 2016. (R. 1 – 5). On August
25, 2016, Dees filed this action under § 405(g) for judicial review of the
Commissioner’s final decision. See (Doc. 1); 42 U.S.C. § 405(g) (“Any individual,
after any final decision of the Commissioner of Social Security made after a hearing
to which he was a party, irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec.
DIB provides income to individuals who are forced into involuntary, premature
retirement, provided they are both insured and disabled, regardless of indigence.
See 42 U.S.C. § 423(a). “For DIB claims, a claimant is eligible for benefits where
she demonstrates disability on or before the last date for which she were insured.
42 U.S.C. § 423(a)(1)(A) (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005) (per curiam).
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that
a court may review, under sentence four of section 405(g), a denial of review by the
Standards of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Id. (quoting
Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in
original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual findings,
[the Court] must affirm if the decision reached is supported by substantial
evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner's decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, we review the resulting
decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB … requires that the claimant be disabled. 42 U.S.C.
§§ 423(a)(1)(E) … A claimant is disabled if she is unable “to engage in
any substantial gainful activity by reason of a medically determinable
physical or mental impairment ... which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).3
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, although the “claimant bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
At Step One, the ALJ determined that Dees had not engaged in substantial
gainful activity since the alleged disability onset date, February 1, 2012. (R. 18). At
Step Two, the ALJ determined that Dees had the following severe impairments:
post-traumatic stress disorder (PTSD), panic disorder, depressive disorder, obesity,
low back pain of uncertain etiology, gout, lower extremity edema, left hallux valgus,
right hallus valgus, sensorineural hearing loss, tinnitus, and sleep apnea. (R. 19 –
At Step Three, the ALJ found that Dees did not have an impairment or
combination of impairments that meets or equals the severity of one of the specified
impairments in the relevant Listing of Impairments. (R. 19 – 20).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Dees had the RFC “to perform a limited range of
sedentary work as defined in 20 CFR 404.1567(b). Specifically, the claimant can
lift and/or carry 10 pounds occasionally and items of negligible weight frequently.
The claimant can stand and/or walk or two hours, no more than 30 minutes at a
time. The claimant can sit for six hours. The claimant can frequently push and/or
pull with the upper extremities, bilaterally, occasionally push and/or pull with the
lower extremities, bilaterally. The claimant can occasionally balance, occasionally
stoop, occasionally kneel, occasionally crouch and occasionally climb ramps and
The claimant can frequently crawl. The claimant cannot climb ladders,
“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4.
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are
met.” 20 C.F.R. § 404.1567(a).
ropes, or scaffolds.
The claimant can frequently reach, bilaterally; frequently
handle, bilaterally; and frequently finger, bilaterally.
The claimant can
continuously feel. The claimant can tolerate occasional exposure to vibration and
occasional exposure to pulmonary irritants. The claimant can have exposure to no
more than moderate noise. The claimant must avoid all exposure to unprotected
heights and avoid all exposure to dangerous machinery. The claimant would have
one unplanned absence per month. The claimant can perform simple routine tasks
involving no more than simple, short instructions and simple work-related decisions
with minimal work place changes. The claimant can tolerate occasional and nontransactional
interaction with co-workers, and occasional interaction with supervisors. He cannot
work in close proximity to others. The claimant is able to sustain attention for twohour periods with customary breaks.” (R. 20 – 27).
Based on this RFC, the ALJ determined that Dees was unable to perform any
past relevant work. (R. 28). At Step Five, the ALJ, after taking testimony from a
vocational expert, found that there exist significant numbers of jobs in the national
economy that Dees can perform given his RFC, age, education, and work experience.
(R. 28 – 29). Thus, the ALJ found that Dees was not disabled under the Social
Security Act. (R. 29). Dees asserts four claims of reversible error by the ALJ.
First Claim of Error – VA Disability Decision
Dees’s first claim of error is that the ALJ failed to fully consider the disability
ratings assigned him by the Department of Veterans Affairs (“VA”).
Pursuant to 20 C.F.R. § 404.1504, a decision by any other government
agency, such as the VA, regarding a claimant’s disabled status “is
based on [that agency's] rules and is not [the commissioner's] decision”
as to disability. 20 C.F.R. § 404.1504. Instead, the Commissioner must
“make a disability ... determination based on social security law.” Id.
VA disability ratings are thus not binding on the ALJ, but such ratings
should be considered and “given great weight.” Brady v. Heckler, 724
F.2d 914, 921 (11th Cir.1984) (quotation omitted).
Boyette v. Comm'r of Soc. Sec., 605 F. App'x 777, 779 (11th Cir. 2015) (per curiam)
Here, the ALJ considered “the VA ratings in which [Dees] has been awarded
anxiety/PTSD/depression, 20% disability for diabetes mellitus, 10% for degenerative
disc disease, 10% for tinnitus, 10% for non-obstructive coronary artery disease or
constocondritis, 10% for GERD, 0% for gout, 0% for residuals from closed right
finger fracture, 0% for bilateral hearing loss, 0% for allergic rhinitis, 0% for
hypertension, 0% for erectile dysfunction, and 0% for right multinodular goiter
status post hemithyroidectomy.” (R. 26 (citing SSA Ex. B16F [R. 1622 – 1628])).
After discussing the Eleventh Circuit’s applicable precedent in Brady and the
differing standards between the SSA and the VA for determining disability, the ALJ
In this case, the VA disability rating is inconsistent with the [sic] much
of the … objective medical evidence, while the residual functional
capacity set forth above is consistent with the overall evidence of
record, including the VA medical records. This includes the claimant’s
minimal, conservative and effective treatment which has allowed the
claimant to attend school and earn degrees which itself are not
activities consistent with the VA disability rating. Notably, as well, is
the VA’s own explanations for their ratings which turn on issues no
related to work capacity, for instance, the VA’s rating of 50% for sleep
apnea because the claimant is required to use a CPAP. VA records
dated June 2015 indicated that the claimant’s sleep apnea was well
controlled and did not impact his ability to work. (Exhibit B11F). Also
notable is the finding in the VA records setting out that the claimant is
able to work a range of sedentary work, despite his service related
conditions. (Exhibit B13F). It was also noted that the claimant’s
inflammatory, autoimmune, crystalline or infectious arthritis condition
or dysbaric osteonecrosis does not impact the claimant’s ability to
work. (Exhibit B4F). Accordingly, based on the overall evidence of
record, while I have given the VA disability ratings consideration, I
assign them no weight.
With that being said, I do give some weight to the VA findings
throughout the record evidence indicating that that claimant is able to
perform a range of work. (Exhibit B13F). This is generally supported
by the medical evidence as a whole reflecting generally effective
treatment and is consistent with the residual functional capacity.
Dees argues that the ALJ’s decision to assign the VA disability findings “no
weight” is not supported by substantial evidence because it is inconsistent with
Dees’s hearing testimony that, while “he had been attending classes at ITT
Technical School three days per week from 6:00 p.m. until 11:00 p.m. for nine
months[,]” he “got a tutor through the VA to help him with his homework and help
him keep up in classes” and “has missed 5 or 6 days of classes in the last three
months due to sleep and anxiety.” (Doc. 14 at 3 (citing R. 62 – 63)). He also
testified “that he has completed an intensive program for PTSD in 2013[,] was
currently in intensive therapy for a sleeping disorder and anxiety with Dr. Aikens[,
and] sees three different medical professionals for treatment at the VA.” (Id. (citing
R. 67 – 69)). Dees also notes he “has continued to be seen regularly by the VA since
September 21, 2011.” (Id. at 4).5
At most, this testimony only calls into question some of the reasons the ALJ
articulated for rejecting the VA ratings, and the undersigned agrees with the
Commissioner that Dees’s mere citation to evidence supporting the VA’s disability
ratings fails to demonstrate that substantial evidence does not support the ALJ’s
decision to reject them. See Crawford, 363 F.3d at 1158–59 (“Even if the evidence
Notably, Dees does not argue that the ALJ’s assignment of “no weight” to the VA’s
disability findings was an error of law in itself. Compare Boyette, 605 F. App'x at
779 (“[A]lthough the ALJ declined to give controlling weight to the VA disability
determination and did not expressly state she gave ‘great’ weight to it, there is no
indication that she failed to give the VA's determination great weight or
consideration. See Brady, 724 F.2d at 921…”), and Brown-Gaudet-Evans v. Comm'r
of Soc. Sec., No. 15-15305, 2016 WL 7157976, at *1 (11th Cir. Dec. 8, 2016) (per
curiam) (unpublished) (“Brown-Gaudet-Evans first argues that the ALJ erred in
according ‘little weight’ to the VA’s disability determination, because disability
determinations by other agencies are entitled to ‘great weight.’ Because this
argument is about the legal principles upon which the ALJ based his decision, we
review it de novo … The ALJ erred. It is the law of this Circuit that ‘[a]lthough the
V.A.'s disability rating is not binding on the [SSA], it is evidence that should be
given great weight.’ Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (per
curiam) (quotation omitted); see also 20 C.F.R. § 404.1504 (providing that other
government agency decisions about a person's disability status based on that
agency's own rules are not binding on the SSA). It is not disputed that the VA's
‘disability’ determination relies on different criteria than the SSA’s determination.
But that does not mean that the ALJ can summarily ignore the VA’s determination
nor give it ‘little weight.’ Therefore, the ALJ erred.”), with Adams v. Comm'r of Soc.
Sec., 542 F. App'x 854, 856-57 (11th Cir. 2013) (per curiam) (unpublished) (“The
ALJ did not misapply the law when he discounted the VA’s 80% disability rating.
Although the ALJ should give the VA's disability rating ‘great weight,’ the rating is
not binding on the Commissioner. Brady v. Heckler, 724 F.2d 914, 921 (11th Cir.
1984)…To the contrary, although the ALJ did not expressly state that he gave
‘great weight’ to the VA’s rating, the record shows that he expressly considered and
closely scrutinized it. See Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. Unit A
March 1981)…Thus, while the ALJ did not specify how much weight he gave the VA
disability determination, he seriously considered it in making his own
determination that Adams was not disabled.”).
preponderates against the Commissioner's findings, we must affirm if the decision
reached is supported by substantial evidence.” (quotation omitted)); Moore, 405 F.3d
at 1213 (“To the extent that Moore points to other evidence which would undermine
the ALJ’s RFC determination, her contentions misinterpret the narrowly
circumscribed nature of our appellate review, which precludes us from re-weighing
the evidence or substituting our judgment for that of the Commissioner ... even if
the evidence preponderates against the decision.” (quotation and footnote omitted)).
Here, the ALJ specifically cited to relevant record evidence, as noted above, that
was “adequate to support a conclusion” that the VA’s disability ratings should be
rejected. Winschel, 631 F.3d at 1178. Moreover, as will be discussed in greater
detail herein, the ALJ found that Dees’s subjective testimony as to the effect of his
impairments was “not entirely consistent” with the record evidence.
Accordingly, substantial evidence supports the ALJ’s decision to assign no weight to
the VA’s disability ratings, and the Court OVERRULES Dees’s first claim of error.
Second Claim of Error (Subjective Testimony)
Dees next argues that the ALJ failed to consider his subjective testimony,
given at the third ALJ hearing held February 3, 2016, “that he still wakes up
through the night even when using his CPAP machine[;] that he has four to five bad
days per week and, on a bad day, it is hard for him to stay focused[; and] that he
has an unexpected sleep pattern, and on a bad day, will fall asleep three to four
times and sleep for about an hour each time.” (Doc. 14 at 5 (citing R. 99 – 100)). In
Dees’s view, it was particularly incumbent upon the ALJ to give special
consideration to this testimony in light of the fact that Dees “has received treatment
from the VA since 2011 for his obstructive sleep apnea and has a 50% service
connected rating for obstructive sleep apnea.” (Doc. 14 at 5).
“If a claimant testifies as to his subjective complaints of disabling pain and
other symptoms, … the ALJ must clearly ‘articulate explicit and adequate reasons’
for discrediting the claimant’s allegations of completely disabling symptoms.” Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam) (quoting Foote v.
Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995) (per curiam)). However, “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 district court or this Court] to conclude that [the ALJ]
considered her medical condition as a whole.’ ” Id. at 1211 (quoting Foote, 67 F.3d
at 1561 (internal quotation omitted)).
The Court “will not disturb a clearly
articulated credibility finding supported by substantial evidence…”
Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) (citing Foote, 67 F.3d
The ALJ’s decision notes that Dees claimed an inability to work as a result of,
among other impairments, “obstructive sleep apnea,” and that Dees “testified that
he is disabled by … an inability to sleep …” (R. 21 (citing “Hearing Testimony”)).
The ALJ found that Dees’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely consistent with the medical
evidence and other evidence in the record…”
After summarizing the
objective medical evidence of record, which primarily consisted of VA treatment
records, the ALJ found that Dees’s subjective physical complaints were “not fully
consistent” because “his objective findings have been mild, and he has required only
conservative treatment.” (R. 25 – 26). In rejecting the VA’s 50% disability rating
for sleep apnea, the ALJ cited VA records indicating that Dees’s “sleep apnea was
well controlled and did not impact his ability to work” and that he “is able to work a
range of sedentary work…” (R. 27). “The ALJ’s decision in this case was not a
broad rejection and was sufficient to enable … this Court to conclude the ALJ
considered [Dees]’s medical condition as a whole.”
Mitchell, 771 F.3d at 782.6
Accordingly, the Court OVERRULES Dees’s second claim of error.
Third Claim of Error (RFC)
Dees’s third claim of error, related to his first, is that, in rejecting the VA
disability ratings, the ALJ “clearly ‘cherry picks’ limitations so as to correspond
with his residual functional capacity” and “essentially used his own interpretation
of the medical records in assigning [Dees]’s residual functional capacity.” (Doc. 14
at 7). While “[a]n ALJ has the obligation to consider all relevant medical evidence
and cannot simply cherry-pick facts that support a finding of non-disability while
ignoring evidence that points to a disability finding[,] an ALJ need not mention
every piece of evidence, so long he builds a logical bridge from the evidence to his
Additionally, Dees offers no argument as to how this testimony is inconsistent
with the ALJ’s RFC determined.
conclusion.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (per curiam).7 See
also Cooper v. Comm'r of Soc. Sec., 521 F. App'x 803, 808 (11th Cir. 2013) (per
curiam) (unpublished) (“An ALJ is not required to refer specifically to each piece of
evidence in the record, but must sufficiently explain the weight given to ‘obviously
probative exhibits.’ Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).”).
Apart from the evidence cited in his first two claims of error, which the
undersigned has rejected, see supra, Dees cites no other record evidence purportedly
ignored by the ALJ that calls the ALJ’s RFC determination into question. To the
extent Dees argues that an ALJ cannot rely on “his own interpretation of the
medical records in assigning the Plaintiff’s residual functional capacity” (Doc. 14 at
7), that argument is without merit. See Fritts v. Colvin, No. CV 15-00209-N, 2016
WL 3566866, at *8 (S.D. Ala. June 24, 2016) (“The task of determining a claimant’s
residual functional capacity and ability to work rests with the administrative law
judge, not a doctor. The ALJ carries out this task by assessing all of the relevant
medical and other evidence…” (citations and quotations omitted)); 20 C.F.R. §
404.1546(c) (“If your case is at the administrative law judge hearing level … , the
administrative law judge … is responsible for assessing your residual functional
capacity.”). Accordingly, the Court OVERRULES Dees’s third claim of error
Fourth Claim of Error (Step Five)
Dees’s fourth and final claim of error asserts that the ALJ’s Step Five
determination that there exist significant numbers of jobs in the national economy
Because Dees’s brief relies on Denton in making this claim of error (see Doc. 14 a
6), the undersigned quotes it here in relevant part.
that Dees can perform, given his RFC, age, education, and work experience, is not
supported by substantial evidence because the vocational expert’s testimony on
which the ALJ relied is contradicted by data from Job Browser Pro by SkillTRAN
computer program. Dees represents that the “date source for Job Browser Pro … is
the U.S. Department of Labor, Dictionary of Occupational Title 4th Edition, Revised
(1991), (including subsequent amendments by the U.S. Department of Labor).”
(Doc. 14 at 8 n.1).
Even assuming that the VE’s testimony did not accurately reflect the DOT,
binding precedent in this Circuit holds “that when the VE’s testimony conflicts with
the DOT, the VE’s testimony ‘trumps’ the DOT.” Jones v. Apfel, 190 F.3d 1224,
1229–30 (11th Cir. 1999). See also Jones v. Comm'r of Soc. Sec., 423 F. App'x at 939
(11th Cir. 2011) (per curiam) (unpublished) (“Even assuming arguendo that the ALJ
incorrectly found that the VE's testimony was consistent with the DOT, such error
was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying
harmless error analysis to ALJ’s incorrect statements that were irrelevant to
whether claimant had a severe impairment).
In this Circuit, a VE’s testimony
trumps the DOT to the extent the two are inconsistent. See Jones, 190 F.3d at
1229–30. The VE opined that the ALJ’s hypothetical person could perform these
three jobs. The ALJ was permitted to base his findings about these three jobs
exclusively on the VE's testimony, irrespective of any inconsistency with the DOT,
and was not required to seek further explanation. See id.”);8 Leigh v. Comm'r of Soc.
The undersigned notes “SSR 00–4p … provides that ‘[n]either the DOT nor the
Sec., 496 F. App'x 973, 975 (11th Cir. 2012) (per curiam) (unpublished) (similar).
Dees offers no substantive argument why this clear precedent is inapplicable here.9
Accordingly, the ALJ did not err in relying on the VE’s testimony as to the numbers
of jobs existing in the national economy, and the undersigned OVERRULES Dees’s
fourth claim of error. There being no other claims of error asserted,10 the Court
[VE's testimony] automatically “trumps” ’ and instructs the ALJ to ‘elicit a
reasonable explanation’ for a conflict between the two before relying on the VE's
testimony. SSR 00–04p, 2000 WL 1898704 (Dec. 4, 2000). Social Security Rulings
are not binding on this Court. See B.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir.
Unit B Apr.1981); see also Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th
Cir.1982) (providing that we are bound by decisions issued by Unit B panels of the
former Fifth Circuit). To the extent SSR 00–4p conflicts with Jones, we are bound
by Jones.” Jones v. Comm'r of Soc. Sec., 423 F. App'x at 939 n.4.
Moreover, the ALJ’s decision reflects that he considered a similar objection by
Dees to the VE’s testimony at the administrative hearing. The ALJ overruled the
objection, noting that the “alleged SkillTran numbers…were not introduced into
evidence and were not accompanied by any expert testimony in support[,]” and that
“[c]hallenges on this basis are insufficient grounds to impeach a vocational expert’s
testimony concerning the number of jobs.” (R. 29). Dees offers no substantive
challenge to the ALJ’s ruling.
Generally, claims of error not raised in the district court are deemed waived. See
Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 – 16 (11th Cir. 1994)
(“As a general principle, [the court of appeals] will not address an argument that
has not been raised in the district court … Because Stewart did not present any of
his assertions in the district court, we decline to consider them on appeal.” (applying
rule in appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Hunter v.
Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam)
(unpublished) (same); Cooley v. Comm'r of Soc. Sec., No. 16-11238, 2016 WL
7321208, at *2 (11th Cir. Dec. 16, 2016) (per curiam) (unpublished) (“As a general
rule, we do not consider arguments that have not been fairly presented to a
respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215
(11th Cir. 1999) (treating as waived a challenge to the administrative law judge’s
reliance on the testimony of a vocational expert that was ‘not raise[d] . . . before the
administrative agency or the district court’).”); In re Pan Am. World Airways, Inc.,
Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457,
1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or
finds that the Commissioner’s final decision denying Dees benefits is due to be
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued May 12, 2016, denying Dees’s application for a
period of disability and DIB is AFFIRMED under sentence four of 42 U.S.C. §
405(g). Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 24th day of April 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
defense for appeal, she must first clearly present it to the district court, that is, in
such a way as to afford the district court an opportunity to recognize and rule on
it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan
American World Airways in Social Security appeal).
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