Bice v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's decision be AFFIRMED and that this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 10/25/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DONNA I. BICE,
NANCY A. BERRYHILL1, Acting
Social Security Commissioner,
CASE NO. 17-CV-00045-N
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff Donna I. Bice (“Bice”
or “Plaintiff”) seeks judicial review of an adverse social security ruling
denying disability benefits under the Supplemental Security Income
Program. (Docs. 1, 9). 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. 16-17). The parties requested that oral argument be waived, and their
request was granted. (Docs. 19-20). After considering the administrative
record and the memoranda of the parties, the Court finds that the decision of
the Commissioner due to be AFFIRMED.
Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
On March 7, 2014, Plaintiff protectively filed a Title II application for a
period of disability and disability insurance benefits beginning September 30,
2003. (Docs. 9 at 1, 14 at 1). Plaintiff alleged a disability onset date of
September 30, 2003. (Doc. 9 at 6 (Fact Sheet)). Her application was initially
denied on April 22, 2014, after which she requested a hearing. (Doc. 14 at 1).
On November 15, 2015, a hearing was held hearing before an Administrative
Law Judge (“ALJ”) and the ALJ rendered an unfavorable decision on
December 22, 2015. (Doc. 8 at 17-29).
At the time of the administrative hearing, Plaintiff was 52 years old,
had graduated from high school, and had previous employment experience as
a customer service representative. (Doc. 9). Plaintiff alleges she is disabled
due to major depressive disorder (“MDD”) and attention deficit hyperactivity
disorder (“ADHD”). (Docs. 8 at 25; 9 at 3). On December 22, 2015, an ALJ
denied benefits after determining that “through the date last insured,
[Plaintiff] did not have an impairment or combination of impairments that
significantly limited the ability to perform basic work-related activities for 12
consecutive months; therefore [Plaintiff] did not have a severe impairment or
combination of impairments (20 CFR 404.1451 et seq.)”. (Doc. 8 at 25). On
December 26, 2016, the Appeals Council denied Plaintiff’s request for review
of the ALJ’s hearing decision. (Doc. 8 at 4-9).
Plaintiff’s brief summarizes her claim on appeal as follows, “The
Administrative Law Judge reversibly erred under Social Security Ruling 8320 and HALLEX I-2-6-70(A) by failing to call on the services of a medical
expert to determine the onset of Plaintiff’s impairments.” (Doc. 9 at 1).
Plaintiff also raised a claim that the ALJ erred when she determined
Plaintiff’s impairment was not severe. (Doc. 9 at 3). Defendant has responded
to—and denies—these claims. (Doc. 14, generally).
STANDARD 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 v. Comm’r of Soc. Sec. Admin., 496 F.3d
1253, 1260 (11th Cir. 2007) (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
findings of fact.
No similar presumption of validity attaches to the
[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)).
This Court “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 1260 (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. 1994).
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
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 and SSI requires that the claimant be
disabled. 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). 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. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015)
(per curiam) (unpublished).2
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
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. 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.”).
3 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.
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).
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).
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 quotation omitted).
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.
Plaintiff contends the ALJ erred by 1) finding that Plaintiff did not
suffer from any severe impairments, and 2) failing to call on the services of a
medical expert to determine the onset of Plaintiff’s impairments. (Doc. 9).
The Court will address these contentions in turn.
Plaintiff argues that the ALJ erred by determining that she did not
suffer from any severe impairments even though, “Overall, the record
suggests that the Plaintiff’s major depression disorder and ADHD were
severe impairments during the time in question, i.e. through December 31,
2007.” (Doc. 9 at 3). At the second step of the sequential evaluation process,
impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). A “severe” impairment is one
which “significantly limits your physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). The Eleventh Circuit has held that a
claimant’s impairment may be considered “not severe” only if it is a slight
abnormality which has such a minimal effect on he or she, that it is not
expected to interfere with the ability to work, regardless of age, education or
work experience. See, e.g., Brady v. Heckler, 724 F.2d 914, 922 (11th
Cir.1984). In McDaniel v. Bowen, 800 F.2d 1026 (11th Cir.1986), the Eleventh
Circuit clarified the severity determination:
[a]t step two of § 404.1520 and § 416.920 a claimant’s
impairment is determined to be either severe or not severe. Step
two is a threshold inquiry. It allows only claims based on the
most trivial impairments to be rejected. The claimant’s burden
at step two is mild. An impairment is not severe only if the
abnormality is so slight and its effect so minimal that it would
clearly not be expected to interfere with the individual’s ability
to work, irrespective of age, education or work experience.
Claimant need show only that her impairment is not so slight
and its effect is not so minimal.
Id. at 1031. If an impairment causes only mild effects on a claimant’s ability
to work, or is amenable to medical treatment, it may be not severe. See
Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir.1987). Thus, a claimant bears
the burden of proving that an impairment is severe and more than a mere
slight abnormality. Brady, 724 F.2d at 920
Here, Plaintiff claims that her alleged disability is based on MDD and
ADHD. A claimant’s mental impairments are evaluated based on how they
impact four functional areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. Cuthbert
v. Astrue, 303 Fed. App’x 697, 699 (11th Cir.2008) (quoting 20 C.F.R. §
404.1520a).4 The regulations provide that if “the degree of [a claimant’s]
limitation in the first three functional areas as ‘none’ or ‘mild’ and ‘none’ in
the fourth area, [the ALJ] will generally conclude that your impairment(s) is
not severe, unless the evidence otherwise indicates that there is more than a
minimal limitation in your ability to do basic work activities.” 20 C.F.R. §
After recounting Plaintiff’s medical history the ALJ explained:
Based on the evidence of record, the undersigned finds that the
claimant did not meet her burden of showing that she had a
severe impairment that existed for twelve continuous months
from September 30, 2003 through December 31, 2007. The
“When we rate the degree of limitation in the first three functional areas (activities of daily
living; social functioning; and concentration, persistence, or pace), we will use the following
five-point scale: None, mild, moderate, marked, and extreme. When we rate the degree of
limitation in the fourth functional area (episodes of decompensation), we will use the
following four-point scale: None, one or two, three, four or more.” 20 C.F.R. § 404.1520a(c)(4).
claimant sought only sporadic mental health treatment during
the adjudication period. She was seen at Alabama Psychiatric
Services until August 2005 and then she was seen a few times at
Altapointe in 2006. The claimant generally responded well to
treatment and her depression was found to be just mild or only
mild to moderate on several office visits at Alabama Psychiatric
Services. Although the claimant reported increased depression
at other times, this was due in part to situational stressors,
including problems she was having with her son. There is no
indication in the Alabama Psychiatric Services treatment
records of any objective problems in terms of the claimant’s
attention or concentration notwithstanding her ADHD. The
claimant’s mental status exams at Altapointe were normal,
other than impaired concentration on one occasion (but
unimpaired at all other office visits) and somewhat impaired
sleep per her report. The claimant failed to show for any
appointments at Altapointe after November 2006. There is no
evidence in the record that she sough mental health treatment
from any other provider from November 2006 through the
December 31, 2007 date last insured.
Moreover, there is no evidence in the record that any of the
claimant’s treating providers opined that she was unable to
work or disabled during the adjudication period. Dr. Duffourc,
who treated the claimant from 1999 to 2001, evaluated the
claimant in January 2003, prior to the alleged onset date
(Exhibit 1F). The claimant was not seeing a mental health
processional at that time or taking psychotropic medication. Dr.
Duffourc recommended that the claimant restart treatment with
a psychiatrist, therapist, and pharmacotherapy. Duffourc
believed that, once the claimant responds to her medication,
“she should be able to return to work” and that with adequate
therapy, she would not have “any significant residual
psychological damage.” The claimant began treatment at
Alabama Psychiatric Services shortly thereafter and, consistent
with the opinion of Dr. Duffourc, she responded positively to
treatment. There are no office notes indicating that the claimant
was disabled and the claimant did not required inpatient
psychiatric treatment or even emergency room treatment for her
allegedly disabling mental health problems during the
In making this finding that the claimant did not have s severe
mental impairment during the adjudication period, the
undersigned has considered the four broad functional areas set
out in the disability regulations for evaluating mental disorders
and in section 12.00C of the Listing of Impairments (20 CFR,
Part 404, Subpart P, Appendix 1). These four broad functional
areas are know as the “paragraph B” criteria. In activities of
daily living, social functioning, and concentration, persistence
and pace, the claimant had no more than mild limitations. The
claimant was living with her spouse and caring for her children.
She reportedly had some difficulties shopping at performing
chores and she was somewhat isolative. Her mental status
exams, however, generally showed only mild depression (or mild
to moderate) and her concentration was normal except at one
office visit. The fourth functional area is episodes of
decompensation. In this area, the claimant experienced no
episodes of decompensation which have been of extended
duration. Because the claimant’s medically determinable mental
impairments caused no more than “mild” limitation in any of the
first three functional areas and “no” episodes of decompensation
which have been of extended duration in the fourth area, they
were nonsevere (20 CFR 404.1520a(d)(1)).
(R. at 28-29).
Substantial evidence supports the ALJ’s finding of no severe mental
impairments when, as here, there was a lack of medical evidence showing
that her impairments impacted her ability to work and her mental
evaluations repeatedly indicated that the impact of her mental illness was
mild. The ALJ noted the few instances where the impact of Plaintiff’s mental
illness was moderate, but these were isolated incidents. Ultimately, the ALJ
properly considered Plaintiff’s mental impairments consistent with the law,
and set forth multiple reasons, all of which are supported by substantial
evidence for finding Plaintiff had no severe mental impairments.
It is clear from the decision, that the ALJ specifically considered all of
Plaintiff’s diagnoses, medical records, and testimony, despite Plaintiff’s
assertions to the contrary. The question before this Court is not whether an
alternative determination may be supported by the record, but whether the
decision reached was supported by substantial evidence. See Ingram, 496
[Commissioner]’s factual findings, we 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)). While the medical
record and Plaintiff’s testimony may support an alternative determination,
there remains substantial evidence within the record on which the ALJ’s
determination was based.
Further, the ALJ specifically articulated the
rationale behind his determination and as a result, Plaintiff’s first
assignment of error is without merit.5
Plaintiff claims “[t]he Administrative Law Judge reversibly erred
under Social Security Ruling 83-20 and HALLEX I-2-6-70(A) by failing to call
on the services of a medical expert to determine the onset of Plaintiff’s
impairments.” (Doc. 9 at 1). However, in this case, the ALJ determined that
the Plaintiff was not disabled. The Eleventh Circuit has twice held in
unpublished opinions that an ALJ is only required to obtain the opinion of a
medical expert to determine the date of disability onset if the ALJ first
The Court observes that Plaintiff’s brief states, “Overall the record suggests that the
Plaintiff’s major depressive disorder and ADHD were severe impairments during the time in
question, i.e. through December 31, 2007.” (Doc. 9 at 3). This is not an argument that the
ALJ’s decision was not supported by substantial evidence. Rather, it is an argument that the
ALJ could have reached a different conclusion.
concludes that the plaintiff is disabled. See Caces v. Comm’r, Soc. Sec.
Admin., 560 F. App’x 936, 939 (11th Cir. Mar. 27, 2014) (“The plain language
of SSR 83–20 indicates that it is applicable only after there has been a
finding of disability and it is then necessary to determine when the disability
began.” (citation omitted)); Klawinski v. Comm’r of Soc. Sec., 391 F. App’x
772, 776 (11th Cir. Aug. 6, 2010) (“We conclude that the ALJ did not
contravene SSR 83–20 because the ALJ ultimately found that [the plaintiff]
was not disabled, and SSR 83–20 only required the ALJ to obtain a medical
expert in certain instances to determine a disability onset date after a finding
of disability.”). The Court finds these decisions persuasive and finds the same
in this case. See also Odom v. Astrue, 2012 WL 2568222, at *7 (S.D.Ala. July
3, 2012) (“[T]his Court agrees with the defendant that since the ALJ did not
determine that [the plaintiff] was disabled, there was no need to establish an
onset date pursuant to SSR 83–20 (or otherwise). In other words, SSR 83–20
has no application to this case.”); Wright v. Colvin, 2015 WL 1346043, at *5
(S.D. Ala. Mar. 24, 2015).
Thus, the undersigned concludes that SSR 83–20 does not apply to
this case, and the ALJ did not err by failing to obtain the opinion of a medical
expert to determine the onset date of Plaintiff’s impairments.
Plaintiff has raised two claims in bringing this action and both are
without merit. Upon consideration of the entire record, the Court finds “such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it
is ORDERED that the Commissioner’s decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action
be DISMISSED. Final judgment will be entered separately.
DONE and ORDERED this the 25th day of October 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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