Ruth v. Commissioner of Social Security
Filing
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OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 6/19/2017. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHANELL RUTH,
Plaintiff,
v.
Case No: 2:16-cv-274-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Chanell Ruth’s Complaint (Doc. 1) filed on April 12, 2016.
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying her claim for a period of disability, disability insurance
benefits, and supplemental security income. 1 The Commissioner filed the Transcript of the
proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
I.
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
1
Plaintiff cited to Fed. R. Civ. P. 56 and included language in in her Memorandum of Law
indicating that she was entitled to judgment as a matter of law. (Doc. 20 at 1). The Court will
construe Plaintiff’s filing as a Memorandum of Law.
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.
Procedural History
On November 10, 2011, Plaintiff filed an application for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). (Tr. at 85, 86, 230-242). Plaintiff asserted
an onset date of December 31, 2011. (Id. at 230). Plaintiff’s applications were denied initially
on April 16, 2012, and on reconsideration on September 11, 2012. (Id. at 85, 85, 87, 88). A
hearing was held before Administrative Law Judge (“ALJ”) Valencia Jarvis on July 23, 2014.
(Id. at 35-74). The ALJ issued an unfavorable decision on August 12, 2014. (Id. at 12-27). The
ALJ found Plaintiff not to be under a disability from December 31, 2011, through the date of the
decision. (Id. at 26).
On March 9, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-5).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on April 12, 2016. This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 15).
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
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2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 2 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through June 30, 2012.
(Tr. at 14). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 31, 2011, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
obesity, hypertension, depression, and anxiety. (Id.). At step three, the ALJ determined that
Plaintiff did not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404, subpt. P, app. 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr. at 17-18).
At step four, the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to
perform light work except for the following:
the claimant can never climb ladders, and scaffolds and can occasionally climb
ramps[,] stairs, balance, bend, stoop, kneel, crouch, and crawl. The claimant is able
to understand, remember and carry out short, simple work instructions with
occasional contact with the general public.
2
Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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(Id. at 21). The ALJ determined that Plaintiff was not capable of performing her past relevant
work as a cashier, nursing assistant, kitchen worker/helper, and fast food cook. (Id. at 25). After
considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id.).
Specifically, the ALJ determined that Plaintiff was able to perform the following jobs: (1)
cleaner/housekeeping, DOT # 323.687-014, light exertion, unskilled, with an SVP of 2; mail
clerk, DT # 209.687-026, light exertion, unskilled, with an SVP of 2; and stock clerk, DOT #
299.667-014, light exertion, unskilled, with an SVP of 2. (Id. at 26). 3 The ALJ concluded that
Plaintiff was not under a disability from December 31, 2011, through the date of the decision.
(Id.).
D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
3
“DOT” refers to the Dictionary of Occupational Titles.
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even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises one issue that contains two sub-issues. As stated by Plaintiff,
the issue is whether the ALJ erred by failing to find that Plaintiff’s seizure disorder is a severe
impairment. (Doc. 20 at 2). In doing so, Plaintiff argues that the ALJ: (1) held Plaintiff to an
improper legal standard, regarding her burden of proof; and (2) improperly substituted her own
opinion for that of a medical expert regarding Plaintiff’s seizure disorder diagnosis. (See id.).
The Court addresses these arguments in turn.
A.
Seizure Disorder as a Severe Impairment
Plaintiff raises two separate arguments concerning the ALJ failing to find her seizure
disorder to be a severe impairment. First, Plaintiff claims that the ALJ erred in requiring
Plaintiff to prove that her seizure disorder was severe by clear and convincing evidence. (See
Doc. 20 at 6-10). Second, Plaintiff argues that the ALJ erred in substituting her own opinion for
that of the treating neurologist’s finding that Plaintiff has a seizure disorder. (See id. at 10-12).
The Commissioner argues in response that the ALJ properly applied the correct legal definition
as to the term “severe” when determining Plaintiff’s severe impairments. (Doc. 21 at 5-6).
Further, the Commissioner asserts that the ALJ’s finding that Plaintiff’s seizure disorder was not
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a severe impairment is not a rejection of the diagnosis, but rather a finding that this impairment
did not cause more than minimal limitations on Plaintiff’s ability to work. (Id. at 7).
1.
Legal Standard at Step Two
At step two of the sequential evaluation, the severity of a claimants impairments is
analyzed. At this step, “[a]n 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.” McDaniel v. Bowen, 800 F.2d
1026, 1031 (11th Cir. 1986). A severe impairment must bring about at least more than a
minimal reduction in a claimant’s ability to work and must last continuously for at least twelve
months. See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial
impairments will not be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987). While the standard for severity is low, the severity of an impairment “must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986).
In the Eleventh Circuit, “[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). Rather, the ALJ is required to consider a claimant’s
impairments in combination, whether severe or not. Id.
A severe impairment is an impairment or combination thereof that significantly
limits the claimant’s physical or mental ability to do basic work activities. [ ] The
determination of whether the claimant suffers from a severe impairment acts as a
filter. [ ] Thus, while a claim is denied if the claimant does not suffer from a severe
impairment, the finding of any severe impairment, regardless of whether it qualifies
as a disability or results from a single impairment or combination thereof, is
sufficient to satisfy the second step of the SSA’s sequential analysis. [ ]
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Nonetheless, beyond the second step, the ALJ must consider the entirety of the
claimant’s limitations, regardless of whether they are individually disabling.
Griffin v. Comm’r of Soc. Sec., 560 F. App’x 837, 841-42 (11th Cir. 2014) (internal citations
omitted). If any impairment or combination of impairments qualifies as “severe,” step two is
satisfied and the claim advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850,
852 (11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).
2.
Whether the ALJ Applied an Incorrect Legal Standard
Plaintiff claims that the ALJ improperly required Plaintiff to prove her severe
impairments by clear and convincing evidence. (See Doc. 20 at 6-10). In this case at step two,
the ALJ found Plaintiff had the severe impairments of obesity, hypertension, depression, and
anxiety. (Tr. at 14). Thus, even if the ALJ erred in finding that Plaintiff’s seizure disorder was
not a severe impairment, the ALJ satisfied the step two analysis by finding other impairments
severe. See Griffin, 560 F. App’x at 841-42. Therefore, any error is harmless as long as the
ALJ considered Plaintiff’s severe impairments in combination with Plaintiff’s non-severe
impairments – including her alleged impairment of seizure disorder. Id.
In the decision, the ALJ considered Plaintiff’s seizure disorder at the third step of the
evaluation by finding that Plaintiff did not have an impairment, or combination of impairments,
that met or medically equaled the severity of one of the listed impairments. (Tr. at 17). Further,
when determining Plaintiff’s RFC, the ALJ stated that she considered all of Plaintiff’s
symptoms. (Id. at 21); see also Griffin, 560 F. App’x at 842 (citing Jones v. Dep’t of Health &
Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991)). In addition to that statement, the ALJ also
summarized Plaintiff’s history of alleged seizures. (Tr. at 15). The ALJ noted that Plaintiff went
to the hospital beginning in December 21, 2013, reporting seizures. (Id.). The ALJ discussed
Plaintiff’s treatment in Brevard Health Alliance for seizures in February 18, 2014, and then her
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hospitalization in April 2014. (Id. at 15-16). The ALJ also summarized the treatment by
neurologist Darshal Aggarwal, M.D. in May and July 2014. (Id. at 16). 4
After a review of the medical records concerning Plaintiff’s alleged seizure disorder, the
ALJ concluded that there was a “lack of consistent medical findings” as to the seizure disorder;
Plaintiff was non-compliant with medications; and there was “no clear and convincing evidence
the claimant does suffer from a true seizure disorder that has lasted or expected to last 12
months.” (Id. at 16). Thus, the ALJ found Plaintiff’s alleged seizure disorder not to be severe.
(Id.). Moreover, the ALJ found that Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of her symptoms were not entirely credible. (Id. at 22). To support this
credibility finding, the ALJ noted that “there is no evidence to support [Plaintiff’s] allegation of
three to four seizures a day or a true diagnosis of a seizure disorder as neurological reports
indicate she was no longer taking prescribed medication and had stopped on her own.” (Id. at
24).
The Court finds that even if the ALJ should have found Plaintiff’s seizure disorder was a
severe impairment, the ALJ fulfilled her responsibility to consider Plaintiff’s seizure disorder in
the remaining steps of her disability analysis. See Griffin, 560 F. App’x at 842. Here, the ALJ
considered Plaintiff’s alleged seizure disorder in combination with both Plaintiff’s severe and
4
Plaintiff also argues that the ALJ failed to consider medical records from Palm Bay Hospital in
July 2014. (Doc. 20 at 9). However, these records were submitted for the first time to the
Appeals Council and were not before the ALJ when she reviewed the record. (See Tr. at 5).
When a plaintiff does not appeal the Appeals Council’s decision to deny review, then a court
need not consider new evidence that was provided only to the Appeals Council to determine if
the ALJ’s decision was supported by the record. Falge v. Apfel, 150 F.3d 1320, 1324 (11th Cir.
1998). Thus, the Court will not consider this evidence as it was presented only to the Appeals
Council.
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non-severe impairments. Therefore, the Court finds that even if the ALJ applied the incorrect
legal standard as to the severity of Plaintiff’s alleged seizure disorder, that error was harmless
because the ALJ found other severe impairments and considered all of Plaintiff’s impairments in
combination.
3.
Whether the ALJ Erred in Substituting Her Opinion for That of a
Treating Neurologist
Plaintiff argues that the ALJ improperly substituted her own opinion for that of a treating
neurologist. (Doc. 20 at 10-11). Plaintiff argues that the ALJ reviewed observations,
examination notes, and considered Plaintiff’s lack of treatment to support her own opinion as to
whether Plaintiff had a seizure disorder. (Id. at 11). Plaintiff cites to the treatment records of Dr.
Aggarwal who diagnosed Plaintiff with seizure disorder on June 25, 2014. (Id.; Tr. at 545).
Plaintiff claims that the evidence cited by the ALJ may go to the degree to which the seizure
disorder limited Plaintiff during the relevant time period, but cannot be used as a substitute for a
diagnosis by a medical expert. (Doc. 20 at 11). The Commissioner argues that the ALJ’s finding
that Plaintiff’s seizure disorder was not a severe impairment does not reject the diagnosis, but
rather demonstrates that this impairment causes no more than minimal limitations in Plaintiff’s
ability to work. (Doc. 21 at 7). Further, the Commissioner asserts that a diagnosis alone is
insufficient to establish the extent to which it limits Plaintiff’s ability to work. (Id.).
An ALJ may not substitute her own opinion as to a plaintiff’s condition for that of
medical experts. Patterson v. Astrue, No. 8:08-CV-1081-T-17EAJ, 2009 WL 2175997, at *7
(M.D. Fla. July 21, 2009) (citing Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir. 1986)). In
this case, the ALJ never specifically substituted her opinion for that of Dr. Aggarwal. Rather, the
ALJ questioned Plaintiff’s subjective complaints of seizures. (See Tr. at 15). The ALJ noted
that Plaintiff “alleged” a history of seizures in December 2013 and reported “alleged” continuing
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seizures in a visit to Dr. Aggarwal in July 25, 2014. (Id. at 15, 16). Because the evidence of
seizures was mainly comprised of Plaintiff’s subjective reports, the ALJ concluded that there was
no clear and convincing evidence that Plaintiff suffered from a true seizure disorder that had
lasted or was expected to last 12 months. (Id. at 16). Thus, the ALJ concluded that Plaintiff’s
seizure disorder was not a severe impairment. (Id.). Further, the ALJ considered these records
in finding Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her
symptoms lacked credibility. (Id. at 22).
The Court reviewed Dr. Aggarwal’s May 8, 2014 and June 18, 2014 records where he
diagnosed Plaintiff with seizure disorder. (Id. at 489, 545). But, at Plaintiff’s July 16, 2014 visit,
Dr. Aggarwal referred Plaintiff to another facility for “diagnosis and management.” (Id. at 543).
Thus, Dr. Aggarwal’s records do not support a clear and continuing diagnosis of seizure
disorder. Moreover, a “diagnosis [ ] is insufficient to establish that a condition cause[s]
functional limitations.” Wood v. Astrue, 2012 WL 834137, at *5 (M.D. Fla. Feb. 14, 2012)
(citing Moore v. Barnhart, 405 F.3d 1207, 1213 n.6 (11th Cir. 2005)). Plaintiff failed to cite to
any evidence of record that Plaintiff’s reported periodic seizures caused more than minimal work
limitations for a period of at least 12 months.
The Court finds that the ALJ thoroughly considered the evidence of record regarding
Plaintiff’s seizure disorder and determined both that Plaintiff was not entirely credible and that
her alleged seizure disorder was not a severe impairment. These findings were supported by the
substantial evidence of record. For the foregoing reasons, the Court finds that the ALJ did not
substitute her opinion for that of the medical expert in the case.
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III. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
Accordingly, IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on June 19, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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