Reives v. Kijakazi et al
Filing
22
MEMORANDUM OPINION AND ORDER: It is ordered that the Commissioner's final decision is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 5/10/2022. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATASHA R. REIVES,
Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.
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CIVIL ACTION NO. 1:21-00475-N
MEMORANDUM OPINION AND ORDER
Plaintiff Natasha R. Reives brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner
of Social Security denying her applications for a period of disability and disability
insurance benefits (collectively, “DIB”) under Title II of the Social Security Act, 42
U.S.C. § 401, et seq., and supplemental security income (“SSI”) under Title XVI of
the Social Security Act, 42 U.S.C. § 1381, et seq.1 Upon due consideration of the
parties’ briefs (Docs. 12, 18) and those portions of the certified transcript of the
administrative record (Doc. 11) relevant to the issues raised, the Court finds that
the Commissioner’s final decision is due to be AFFIRMED.2
“Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the
payment of insurance benefits to persons who have contributed to the program and
who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D) (1982 ed.,
Supp. III). Title XVI of the Act provides for the payment of disability benefits to
indigent persons under the Supplemental Security Income (SSI) program. §
1382(a).” Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 96 L. Ed. 2d 119
(1987).
1
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
2
I.
Procedural Background
Reives filed the subject DIB and SSI applications with the Social Security
Administration (“SSA”) on September 11, 2019. After they were initially denied,
Reives requested, and on November 19, 2020, received, a hearing before an
Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication
and Review. On December 24, 2020, the ALJ issued an unfavorable decision on
Reives’s applications, finding her not disabled under the Social Security Act and
therefore not entitled to benefits. (See Doc. 11, PageID.48-73).
The Commissioner’s decision on Reives’s applications became final when the
Appeals Council for the Office of Disability Adjudication and Review denied her
request for review of the ALJ’s unfavorable decision on September 16, 2021. (Id.,
PageID.42-46). Reives subsequently brought this action under §§ 405(g) and
1383(c)(3) for judicial review of the Commissioner’s final decision. See 42 U.S.C. §
1383(c)(3) (“The final determination of the Commissioner of Social Security after a
hearing [for SSI benefits] shall be subject to judicial review as provided in section
405(g) of this title to the same extent as the Commissioner’s final determinations
under section 405 of this title.”); 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
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; 3/29/2022 text-only order).
With the Court’s consent, the parties jointly waived the opportunity to
present oral argument. (See Docs. 19, 20, 21).
notice of such decision or within such further time as the Commissioner of Social
Security may allow.”); Ingram v. Comm'r of Soc. Sec. 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 Appeals Council.”).
II.
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.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quotation omitted).
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency
factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. [293], [301], 135
S. Ct. 808, 815, 190 L. Ed. 2d 679 (2015). Under the substantialevidence standard, a court looks to an existing administrative record
and asks whether it contains “sufficien[t] evidence” to support the
agency’s factual determinations. Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938) (emphasis
deleted). And whatever the meaning of “substantial” in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial
evidence … is “more than a mere scintilla.” Ibid.; see, e.g., [Richardson
v.] Perales, 402 U.S. [389,] 401, 91 S. Ct. 1420[, 28 L. Ed. 2d 842
(1971)] (internal quotation marks omitted). It means—and means
only—“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison, 305 U.S. at
229, 59 S. Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.
Ct. 1816, 144 L. Ed. 2d 143 (1999) (comparing the substantial-evidence
standard to the deferential clearly-erroneous standard).
Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019).
In reviewing the Commissioner’s factual findings, a court “ ‘may not decide
the facts anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner].’ ” Winschel, 631 F.3d at 1178 (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)). See
also Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (“A
preponderance of the evidence is not required. In determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s factfindings.”
(citation omitted)).
Put another way, “[u]nder the substantial evidence standard, we cannot look
at the evidence presented to [an administrative agency] to determine if
interpretations of the evidence other than that made by the [agency] are possible.
Rather, we review the evidence that was presented to determine if the findings
made by the [agency] were unreasonable. To that end, [judicial] inquiry is highly
deferential and we consider only whether there is substantial evidence for the
findings made by the [agency], not whether there is substantial evidence for some
other finding that could have been, but was not, made. That is, even if the evidence
could support multiple conclusions, we must affirm the agency’s decision unless
there is no reasonable basis for that decision.” Adefemi v. Ashcroft, 386 F.3d 1022,
1029 (11th Cir. 2004) (en banc) (citations and quotation omitted).3
3
See also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam)
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [A 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.”).4
(“The court need not determine whether it would have reached a different result
based upon the record” because “[e]ven if we find that the evidence preponderates
against the [Commissioner]'s decision, we must affirm if the decision is supported
by substantial evidence.”); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991) (under the substantial evidence standard, “we do not reverse the
[Commissioner] even if this court, sitting as a finder of fact, would have reached a
contrary result…”); Hunter, 808 F.3d at 822 (“In light of our deferential review,
there is no inconsistency in finding that two successive ALJ decisions are supported
by substantial evidence even when those decisions reach opposing conclusions.
Faced with the same record, different ALJs could disagree with one another based
on their respective credibility determinations and how each weighs the evidence.
Both decisions could nonetheless be supported by evidence that reasonable minds
would accept as adequate.”); Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991)
(“Substantial evidence may even exist contrary to the findings of the ALJ, and we
may have taken a different view of it as a factfinder. Yet, if there is substantially
supportive evidence, the findings cannot be overturned.”); Werner v. Comm'r of Soc.
Sec., 421 F. App’x 935, 939 (11th Cir. 2011) (per curiam) (unpublished) (“The
question is not, as Werner suggests, whether ALJ could have reasonably credited
his testimony, but whether the ALJ was clearly wrong to discredit it.” (footnote
omitted)); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on
reh'g (Aug. 9, 2001) (“If the evidence is susceptible to more than one rational
interpretation, the court may not substitute its judgment for that of the
Commissioner.”).
4
However, the “burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409,
129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). See also Scharlow v. Schweiker, 655 F.2d
645, 648 (5th Cir. Unit A Sept. 8, 1981) (per curiam) (“It is the claimant who bears
the weighty burden of establishing the existence of a disability within the meaning
of the Act, and therefore the appellant has the burden of showing that the
Secretary’s decision is not supported by substantial evidence in the record.” (citation
omitted)); Sims v. Comm'r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017) (per
curiam) (unpublished) (“Under a substantial evidence standard of review, [the
claimant] must do more than point to evidence in the record that supports her
position; she must show the absence of substantial evidence supporting the ALJ's
conclusion.”). “[D]istrict court judges are not required to ferret out delectable facts
buried in a massive record,” Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1061
(11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings), and “ ‘[t]here is no burden
upon the district court to distill every potential argument that could be made based
on the materials before it…’ ” Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239
(11th Cir. 2012) (per curiam) (Fed. R. Civ. P. 56 motion for summary judgment)
(quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(en banc)) (ellipsis added). The Eleventh Circuit Court of Appeals, whose review of
Social Security appeals “is the same as that of the district court[,]” Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of
error not fairly raised in the district court. 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)); Crawford v. Comm'r Of Soc. Sec., 363 F.3d
1155, 1161 (11th Cir. 2004) (per curiam) (same); 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., 671 F. App’x 767, 769 (11th Cir. 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 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); Sorter v.
Soc. Sec. Admin., Comm'r, 773 F. App’x 1070, 1073 (11th Cir. 2019) (per curiam)
(unpublished) (“Sorter has abandoned on appeal the issue of whether the ALJ
adequately considered her testimony regarding the side effects of her pain
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
medication because her initial brief simply mentions the issue without providing
any supporting argument. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79
(11th Cir. 2009) (explaining that ‘simply stating that an issue exists, without
further argument or discussion, constitutes abandonment of that issue’).”); Figuera
v. Comm'r of Soc. Sec., 819 F. App’x 870, 871 n.1 (11th Cir. 2020) (per curiam)
(unpublished) (“Figuera also argues the ALJ failed to properly assess her credibility
… However, Figuera did not adequately raise this issue in her brief before the
district court. She raised the issue only summarily, without any citations to the
record or authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (noting that a party ‘abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting
arguments and authority’). As a result, we do not address the sufficiency of the
ALJ’s credibility finding.”); Turner v. Social Security Administration, Commissioner,
No. 21-13590, 2022 WL 842188, at *2 (11th Cir. Mar. 22, 2022) (per curiam)
(unpublished) (“An appellant forfeits an argument by ‘mak[ing] only passing
references to it or rais[ing] it in a perfunctory manner without supporting
arguments and authority.’ Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014). In her briefing, Turner states that the Appeals Council failed to
request her records or obtain a consultative evaluation. But she cites no authorities
or makes any other argument tending to establish that it had a duty to do so. She
has therefore failed to adequately develop this argument, and it is forfeited.”).
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 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).”). Moreover, an ALJ’s decision
must “state with at least some measure of clarity the grounds for [the] decision.”
Owens, 748 F.2d at 1516; Winschel, 631 F.3d at 1179. A court cannot “affirm simply
because some rationale might have supported the [Commissioner]’ conclusion[,]” as
“[s]uch an approach would not advance the ends of reasoned decision making.”
Owens, 748 F.2d at 1516. Rather, “an agency’s order must be upheld, if at all, on the
same basis articulated in the order by the agency itself.” Fed. Power Comm'n v.
Texaco Inc., 417 U.S. 380, 397, 94 S. Ct. 2315, 41 L. Ed. 2d 141 (1974) (quotation
omitted). See also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (“The ALJ’s
decision must stand or fall with the reasons set forth in the ALJ’s decision, as
adopted by the Appeals Council.”); Nance v. Soc. Sec. Admin., Comm'r, 781 F. App’x
912, 921 (11th Cir. 2019) (per curiam) (unpublished)5 (“Agency actions … must be
upheld on the same bases articulated in the agency's order.” (citing Texaco Inc., 417
U.S. at 397, and Newton, 209 F.3d at 455)).
Eligibility for DIB and SSI requires a showing that the claimant is disabled,
42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2), meaning that the claimant 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).
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
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 Bonilla v.
Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished
opinions are not controlling authority and are persuasive only insofar as their legal
analysis warrants.”); 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.”).
5
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
experience.
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).6
“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).
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
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
6
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).
If a court determines that the Commissioner reached a decision “by focusing
upon one aspect of the evidence and ignoring other parts of the record[, i]n such
circumstances [the court] cannot properly find that the administrative decision is
supported by substantial evidence. It is not enough to discover a piece of evidence
which supports that decision, but to disregard other contrary evidence.” McCruter v.
Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). Nevertheless, “ ‘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 [a reviewing court] to conclude that the ALJ considered [the claimant's]
medical condition as a whole.’ ” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780,
782 (11th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)
(per curiam) (quotation and brackets omitted)).
When, as here, the ALJ denies benefits and the Appeals Council denies
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. But “when a claimant
properly presents new evidence to the Appeals Council, a reviewing court must
consider whether that new evidence renders the denial of benefits erroneous.”
Ingram, 496 F.3d at 1262. Nevertheless, “when 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).
III.
Summary of the ALJ’s Decision
At Step One, the ALJ determined that Reives met the applicable insured
status requirements through March 31, 2024, and that she had not engaged in
substantial gainful activity since the alleged disability onset date of May 17, 2019.7
(Doc. 11, PageID.53-54). At Step Two,8 the ALJ determined that Reives had the
“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. For DIB claims, a claimant is eligible
for benefits where she demonstrates disability on or before the last date for which
she were insured.” Moore, 405 F.3d at 1211 (citation omitted).
7
“The severity regulation increases the efficiency and reliability of the evaluation
process by identifying at an early stage those claimants whose medical impairments
are so slight that it is unlikely they would be found to be disabled even if their age,
education, and experience were taken into account.” Yuckert, 482 U.S. at 153. “[A]n
8
following severe impairments: lumbar degenerative disc disease, and degenerative
joint disease of the right shoulder. (Doc. 11, PageID.54-57). At Step Three,9 the ALJ
determined that Reives did not have an impairment or combination of impairments
that met or equaled the severity of a specified impairment in Appendix 1 of the
Listing of Impairments, 20 C.F.R. § 404, Subpt. P, App. 1. (Doc. 11, PageID.58).
At Step Four,10 the ALJ determined that Reives had the residual functional
‘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.’ A claimant’s
burden to establish a severe impairment at step two is only ‘mild.’ ” Schink v.
Comm'r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir. 2019) (per curiam) (citation
omitted) (quoting McDaniel, 800 F.2d at 1031).
Conversely to Step Two, Step Three “identif[ies] those claimants whose medical
impairments are so severe that it is likely they would be found disabled regardless
of their vocational background.” Yuckert, 482 U.S. at 153. See also Crayton v.
Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997) (“If the claimant’s condition meets
or equals the level of severity of a listed impairment, the claimant at this point is
conclusively presumed to be disabled based on his or her medical condition.”).
9
10
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. §
capacity (RFC) “to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b)[11] except [she] can sit for six hours in an eight-hour day[;] can stand
and/or walk for four hours in an eight-hour day[;] can occasionally climb ramps and
stairs, but never climb ladders, ropes, or scaffolds[; w]ith the right upper extremity,
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). “[A]n ALJ's RFC assessment is an
administrative finding based on all the relevant evidence, including both medical
and nonmedical evidence.” Pupo v. Comm'r, Soc. Sec. Admin., 17 F.4th 1054, 1065
(11th Cir. 2021).
“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. The criteria for “light” work are as follows:
11
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide
range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. §§ 404.1567(b), 416.967(b).
she can occasionally reach overhead and frequently reach in all other directions[;
and t]he left upper extremity is not limited in reaching.” (Doc. 11, PageID.59-66).
Based on the RFC and the testimony of a vocational expert,12 the ALJ found
that Reives was incapable of performing any past relevant work. (Doc. 12,
PageID.66). However, at Step Five, after considering additional testimony from the
vocational expert, the ALJ found that there exist a significant number of jobs in the
national economy as a surveillance system monitor (approximately 31,984 jobs) that
Reives could perform given her RFC, age, education, and work experience. (Id.,
PageID.67-68). Thus, the ALJ found that Reives was not under a disability as
defined by the Social Security Act from the disability onset date through the date of
the ALJ’s decision. (Id., PageID.68).
IV.
a.
Analysis
Additional Severe Impairment
Reives first argues that the ALJ erred by not finding her right wrist disorder
to be a severe impairment at Step Two. No reversible error has been shown.
The Eleventh Circuit Court of Appeals has recognized that Step Two is “a
‘threshold inquiry’ and ‘allows only claims based on the most trivial impairments to
be rejected.’ ” Schink v. Comm'r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir. 2019)
(per curiam) (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)). See
“A vocational expert is an expert on the kinds of jobs an individual can perform
based on his or her capacity and impairments. When the ALJ uses a vocational
expert, the ALJ will pose hypothetical question(s) to the vocational expert to
establish whether someone with the limitations that the ALJ has previously
determined that the claimant has will be able to secure employment in the national
economy.” Phillips, 357 F.3d at 1240.
12
also Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“At step two the ALJ
must determine if the claimant has any severe impairment. This step acts as a
filter; if no severe impairment is shown the claim is denied…”). “[T]he finding of any
severe impairment, whether or not it qualifies as a disability and whether or not it
results from a single severe impairment or a combination of impairments that
together qualify as severe, is enough to satisfy the requirement of step two.”
Jamison, 814 F.2d at 588. Therefore, “[n]othing requires that the ALJ must
identify, at step two, all of the impairments that should be considered severe.”
Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010) (per curiam)
(unpublished).
An ALJ’s harmless errors do not warrant reversal of a final decision. See
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983). An “error is harmless if it did
not affect the judge’s ultimate determination[,]” Hunter v. Comm'r of Soc. Sec., 609
F. App’x 555, 558 (11th Cir. 2015) (per curiam) (unpublished) (citing Diorio, 721
F.2d at 728); accord Jacobus v. Comm'r of Soc. Sec., 664 F. App'x 774, 776 (11th Cir.
2016) (per curiam) (unpublished), and the “burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.”
Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009).
Since, again, an ALJ need find only one severe impairment to proceed past Step
Two, any error in classifying additional impairments as non-severe has no effect on
the ultimate outcome of the decision, so long as the ALJ, based on substantial
evidence, accounts for the “true” limiting effects of those impairments at the later
steps of the sequential evaluation. As the Commissioner correctly points out, the
Eleventh Circuit has repeatedly held that any error in not finding additional severe
impairments at Step Two is harmless, so long as the ALJ finds at least one,13 and
See e.g., Wood v. Soc. Sec. Admin., Comm'r, 726 F. App'x 742, 745 (11th Cir. 2018)
(per curiam) (unpublished) (“Step two is a ‘filter’ which eliminates groundless
claims. See Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). To meet his
burden at this step, Mr. Wood only had to show ‘at least one’ severe impairment.
See id. He met his burden and the ALJ appropriately proceeded to the next step of
the sequential analysis. Therefore, any error in not finding additional severe
impairments did not harm Mr. Wood.”); Ball v. Comm'r of Soc. Sec. Admin., 714 F.
App'x 991, 992–93 (11th Cir. 2018) (per curiam) (unpublished) (“Ball contends that
the ALJ erred at the second step of the five-step analysis because she found that
Ball's depression was not a severe impairment. But step two of the test ‘acts as a
filter’ in that the ‘finding of any severe impairment ... is enough to satisfy the
requirement of step two’ and allow the ALJ to proceed to step three. Jamison v.
Bowen, 814 F.2d 585, 588 (11th Cir. 1987). As a result, even if the ALJ should have
determined that Ball’s depression was severe, any error was harmless because the
ALJ determined that her compression fracture, spur formation, and lumbar
fractures were severe, which allowed the ALJ to move on to step three.”): Vangile v.
Comm'r, Soc. Sec. Admin., 695 F. App'x 510, 514 (11th Cir. 2017) (per curiam)
(unpublished) (“In this case, any step two error the ALJ may have committed by
failing to explicitly mention Vangile’s chronic mastoiditis was harmless because she
found two other severe impairments and proceeded to step three in any event.”);
Medina v. Soc. Sec. Admin., 636 F. App'x 490, 492 (11th Cir. 2016) (per curiam)
(unpublished) (“[E]ven if Medina’s other conditions should have been categorized as
severe impairments, any error was harmless because the ALJ determined that her
obesity and ‘thyroid cancer status post total thyroidectomy’ were severe
impairments, allowing him to move onto step three of the test.”); McCormick v. Soc.
Sec. Admin., Com'r, 619 F. App'x 855, 858 (11th Cir. 2015) (“[S]tep two is merely a
filter, and any error in considering an additional impairment is harmless since it
does not factor into the determination of disability.” (citing Jamison, 814 F.2d at
588)); Hearn v. Comm'r, Soc. Sec. Admin., 619 F. App'x 892, 895 (11th Cir. 2015)
(per curiam) (unpublished) (“[T]he finding of any severe impairment, whether or not
it results from a single severe impairment or a combination of impairments that
together qualify as ‘severe,’ is enough to satisfy step two.” (citing Jamison, 814 F.2d
at 588)); Tuggerson-Brown v. Comm'r of Soc. Sec., 572 F. App'x 949, 951 (11th Cir.
2014) (per curiam) (unpublished) (“Based on our precedent and the regulations, … it
is apparent that there is no need for an ALJ to identify every severe impairment at
step two. Accordingly, even assuming that Tuggerson–Brown is correct that her
additional impairments were ‘severe,’ the ALJ's recognition of that as a fact would
13
considers all of the claimant’s medically determinable impairments, both severe and
non-severe, at the later steps of the sequential evaluation.14
Here, the ALJ determined that Reives had two severe impairments at Step
Two, then duly proceeded to the remaining steps of the sequential evaluation. In
arguing this claim of error, Reives cites only case law concerning the standards for
finding “severe” impairments at Step Two, and she otherwise fails to provide any
explanation of how the ALJ failed to consider her right wrist disorder at the later
steps of the evaluation. 15 Thus, the ALJ’s failure to find an additional severe
not, in any way, have changed the step-two analysis, and she cannot demonstrate
error below.”); Heatly, 382 F. App'x at 824–25 (“Even if the ALJ erred in not
indicating whether chronic pain syndrome was a severe impairment, the error was
harmless because the ALJ concluded that Heatly had a severe impairment: and that
finding is all that step two requires.”).
See Schink, 935 F.3d at 1268 (“Our conclusion that substantial evidence does not
support the ALJ’s finding that Schink’s mental impairments were non-severe …
could be harmless if the ALJ nevertheless proceeded in the sequential evaluation,
duly considered Schink’s mental impairment when assessing his RFC, and reached
conclusions about Schink’s mental capabilities supported by substantial evidence.
Here, though, the ALJ’s RFC assessment was limited to Schink’s physical abilities
and impairments and erroneously omitted his mental ones. As a result, we cannot
say that the erroneous finding of non-severity was harmless.”); Ball, 714 F. App’x at
993 (“Ball’s argument that the purported error [in failing to find additional severe
impairments in step two] affected the ALJ’s residual functional capacity analysis in
step four fails because the ALJ considered all of Ball's symptoms and impairments
(including her alleged depression), her medical records and testimony, and all
opinion evidence (including Dr. Whitlock’s opinion) in determining her residual
functional capacity.”); Tuggerson-Brown, 572 F. App’x at 951 (“While the ALJ did
not need to determine whether every alleged impairment was ‘severe,’ he was
required to consider all impairments, regardless of severity, in conjunction with one
another in performing the latter steps of the sequential evaluation.”).
14
At most, she conclusorily states that, “[a]lthough the A[LJ] assigned a limitation
of occasionally reaching and frequently reaching in all other directions, this does not
encompass the permanent restriction given to [Reives] by her treating orthopedist.”
15
impairment of the right wrist at Step Two was, at most, harmless.
Moreover, the ALJ gave a thorough explanation at Step Two for why he found
Reives’s right wrist disorder to be non-severe (see Doc. 11, PageID.54-55), and
Reives largely fails to engage with the ALJ’s stated reasoning, instead simply
providing her own summary of the evidence regarding her right wrist disorder and
conclusorily asserting that it supports greater limitations. However, an ALJ’s
factual finding need only be supported by substantial evidence, and must be
affirmed even if the evidence preponderates against it. Ingram, 496 F.3d at 1260.
“Under a substantial evidence standard of review, [the claimant] must do more than
point to evidence in the record that supports her position; she must show the
absence of substantial evidence supporting the ALJ's conclusion.” Sims v. Comm'r
of Soc. Sec., 706 F. App'x 595, 604 (11th Cir. 2017) (per curiam) (unpublished). See
also Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. Unit A Sept. 8, 1981) (per
curiam) (“It is the claimant who bears the weighty burden of establishing the
existence of a disability within the meaning of the Act, and therefore the appellant
has the burden of showing that the Secretary’s decision is not supported by
substantial evidence in the record.” (citation omitted));16 Hunter, 808 F.3d at 822
(Doc. 12, PageID.920). However, this is in reality a challenge to the ALJ’s
consideration of the treating orthopedist’s medical opinion, not an argument that
the ALJ failed to consider an impairment at the later steps. Moreover, as will be
explained, the ALJ did not err in finding the treating orthopedist’s opinion not
persuasive.
On “October 1, 1981 pursuant to the Fifth Circuit Court of Appeals
Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, … the United States Court
of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the
16
(“Faced with the same record, different ALJs could disagree with one another based
on their respective credibility determinations and how each weighs the evidence.
Both decisions could nonetheless be supported by evidence that reasonable minds
would accept as adequate.”). Without any attempt to show error in the ALJ’s stated
reasoning, Reives’s bare discussion of the record amounts to little more than an
invitation for the Court to impermissibly reweight the evidence or substitute its
judgment for the ALJ’s. Winschel, 631 F.3d at 1178. Additionally, Reives fails to
address the ALJ’s finding that her right wrist disorder failed to meet the “duration
requirement” to be considered severe. (Doc. 11, PageID.55). 17 In sum, Reives has
failed to convince the undersigned that the ALJ’s decision to find Reives’s right
wrist impairment to be non-severe is not at least supported by substantial evidence.
‘new Fifth.’ ” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc). “The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former
Fifth Circuit rendered prior to October 1, 1981.” Smith v. Shook, 237 F.3d 1322,
1325 n.1 (11th Cir. 2001) (per curiam).
See 20 C.F.R. §§ 404.1509, 416.909 (“Unless your impairment is expected to result
in death, it must have lasted or must be expected to last for a continuous period of
at least 12 months. We call this the duration requirement.”); 20 C.F.R. §§
404.1523(a)-(b), 416.923(a)-(b) (“We cannot combine two or more unrelated severe
impairments to meet the 12–month duration test. If you have a severe
impairment(s) and then develop another unrelated severe impairment(s) but
neither one is expected to last for 12 months, we cannot find you disabled, even
though the two impairments in combination last for 12 months … If you have two or
more concurrent impairments that, when considered in combination, are severe, we
must determine whether the combined effect of your impairments can be expected
to continue to be severe for 12 months. If one or more of your impairments improves
or is expected to improve within 12 months, so that the combined effect of your
remaining impairments is no longer severe, we will find that you do not meet the
12–month duration test.”).
17
b.
RFC
Reives’s substantive argument in support of her second, and final, claim of
reversible error, is as follows:
In his decision, the Administrative Law Judge stated that Claimant’s
removed Claimant’s hand restrictions as of the end of June 2019,
“highly inconsistent with a permanent impairment.” PageID.54. The
[ALJ} stated that Claimant’s five pound weight restrictions “were
neither meant to be permanent nor were they accommodating a
medically determinable impairment as we define it.” PageID.55. The
Administrative Law Judge did not address the limitation given by
Claimant’s Permanent Partial Impairment Summary.
(Doc. 12, PageID.922).
Though she provides no record citation to the “Permanent Partial
Impairment Summary” she references, Reives’s argument in support of her prior
claim of error references a Permanent Partial Impairment (PPI) Summary, dated
August 28, 2019, “not[ing] a 4% upper extremity permanent partial impairment
estimate for [Reives’s] right wrist, with a 2% Whole Person partial impairment
estimate.” (Id., PageID.920 (citing Doc. 11, PageID.533)). While the ALJ did not
specifically mention this PPI Summary in his decision, he did discuss physician
treatment notes concerning Reives’s right wrist disorder that spanned the period
from February 2019 to mid-2020, including notes from August 2019. (See Doc. 11,
PageID.54-55). From his consideration of these notes, the ALJ concluded that the
work restrictions imposed for Reives’s wrist impairment “were neither meant to be
permanent nor were they accommodating a medically determinable impairment as
[the Commissioner] define[s] it.” (Id., PageID.55). Thus, the ALJ implicitly rejected
any suggestion that Reives had a permanent right wrist impairment.18 Reives has
failed to show that this determination is not supported by substantial evidence, and
“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 a reviewing court to conclude that the ALJ considered the
claimant’s medical condition as a whole.” Mitchell, 771 F.3d at 782 (quotation
omitted).19
No reversible error having been shown, the Court finds that the
Commissioner’s final decision denying Reives’s applications for benefits is due to be
AFFIRMED.
The undersigned notes the PPI Summary states, at the bottom, that it was
completed by an “occupational therapist,” that “[o]nly a physician may issue an
impairment ‘rating[,]’ ” and that “[p]hysicians have the discretion to modify the
above rating if medical conditions demand.” (Doc. 11, PageID.533 (alterations
added)). Since the ALJ is responsible for assessing a claimant’s RFC at the ALJ
hearing level, 20 C.F.R. §§ 404.1546(c), 416.946(c), the ALJ could, under the PPI
Summary’s own terms, reject that rating of permanent impairment if the medical
evidence of record supported a different conclusion.
18
To the extent Reives’s brief attempts to raise other sub-issues in her second claim
of error, they are deemed abandoned. Merely reciting evidence in the administrative
record and quoting various Social Security rules and regulations, without any
attempt to apply law to facts, is insufficient to raise an issue for the Court’s
consideration. Moreover, though she asserts that “the ALJ erred in rejecting the
limitations given by [her] orthopedist” in the heading to this section of her brief, she
advances no substantive argument as to how. See Walker v. Comm'r, Soc. Sec.
Admin., 835 F. App'x 538, 542 n.1 (11th Cir. 2020) (per curiam) (unpublished) (“As
the government notes, Walker’s argument on this issue consists of lengthy block
quotes to caselaw without any attempt to apply the law to the facts of this case. He
has thus abandoned the issue by failing to develop his arguments. See Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (‘A passing
reference to an issue in a brief is not enough, and the failure to make arguments ...
in support of an issue waives it.’).”).
19
V.
Conclusion & Order
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision denying Reives’s September 11, 2019 DIB and SSI
applications is AFFIRMED under sentence four of 42 U.S.C. § 405(g).
A final judgment consistent with this opinion and order shall issue by
separate document in accordance with Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 10th day of May 2022.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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