Duncan v. Commissioner of Social Security
Filing
30
OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/20/2017. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PENNY DUNCAN,
Plaintiff,
v.
Case No: 2:16-cv-553-FtM-DNF
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.1
_____________________________
OPINION AND ORDER
Plaintiff, Penny Duncan, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability and
Disability Insurance Benefits (“DIB”). The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed
memoranda setting forth their respective 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, Standard of Review, Procedural History, and the
ALJ’s Decision
A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
1
Nancy A. Berryhill became the Acting Commissioner of the Social Security on January 23, 2017.
Pursuant to Fed. R. Civ. P. 25(d)(1), Nancy A. Berryhill is substituted as the defendant in this case.
death or which 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), 1382(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 which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
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The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
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the claimant is capable of performing other work, she will be found not disabled. Id.
In
determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed an application for a period of disability and DIB on July 18,
2013, alleging a disability onset date of June 6, 2013. (Tr. 27). Plaintiff’s claim was denied initially
on September 24, 2013, and upon reconsideration on October 15, 2013. (Tr. 136-38, 141-45). At
Plaintiff’s request, a hearing was held before Administrative Law Judge (“ALJ”) Troy M.
Patterson on December 2, 2014. (Tr. 44-66). On December 24, 2015, the ALJ entered a decision
finding that Plaintiff was not disabled. (Tr. 27-37). Plaintiff requested review of this decision and
the Appeals Council denied Plaintiff’s request on June 21, 2016. (Tr. 1-6). Plaintiff initiated the
instant action by Complaint (Doc. 1) on July 13, 2016. The parties having filed memoranda setting
forth their respective positions, this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during the period of time from her alleged onset date of June 6, 2013,
through her date last insured of December 31, 2014. (Tr. 29). At step two, the ALJ found that
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Plaintiff had the following severe impairments: major depressive disorder, post-traumatic stress
disorder, diabetes mellitus, generalized arthritis and complications of gall bladder disease. (Tr. 29).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 29).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform medium work as defined in 20 CFR 404.1567(c) except she was
limited to frequent postural activities. She could have only occasional
exposure to temperature extremes, and she should avoid workplace
hazards. The claimant could only have occasional interaction with coworkers, supervisors, and the public.
(Tr. 31). At step four, the ALJ found that Plaintiff was capable of performing past relevant work
as a “general clerk” as this work does not require the performance of work-related activities
precluded by Plaintiff’s RFC. (Tr. 35). In reaching this finding the ALJ relied on the testimony of
a vocational expert. (Tr. 35).
Despite finding that Plaintiff could perform past relevant work, the ALJ continued the
sequential evaluation and made an alternative finding at step five that there were jobs that existed
in the national economy in significant numbers that Plaintiff could have performed. (Tr. 35-36).
Relying on the testimony of the vocational expert, the ALJ found that Plaintiff could perform the
jobs of “cleaner/hospital,” “hand packager,” and “laundry worker.” (Tr. 36).
The ALJ concluded that Plaintiff was not under a disability at any time from June 6, 2013,
the alleged onset date, through December 31, 2014, the date last insured. (Tr. 36).
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II.
Analysis
Plaintiff raises four issues on appeal: (1) whether the ALJ erred by failing to give res
judicata effect to a prior administrative decision; (2) whether the ALJ erred by failing to find
diverticulitis and/or irritable bowel syndrome is a severe impairment; (3) whether the ALJ erred
by failing to develop the record as to Plaintiff’s past relevant work; and (4) whether the ALJ erred
by failing to find and resolve an inconsistency between the vocational expert’s testimony and the
DOT. The Court will address each issue in turn.
A) Whether the ALJ erred by failing to give res judicata effect to a prior
administrative decision.
In a prior administrative decision dated June 5, 2013, an Administrative Law Judge found
that Plaintiff had the severe impairments of depressive disorder, anxiety, PTSD, mood disorder
secondary to chronic pain, diabetes mellitus type II, generalized arthritis, arthralgia secondary to
elevated glucose, irritable bowel syndrome, history of diverticulitis of the colon, left sciatica/pain
in left hip, and obesity. (Tr. 73). The Administrative Law Judge in the prior administrative decision
found that Plaintiff was capable of performing light work, except she could only occasionally
perform postural activities such as climbing ramps and stairs, stooping, bending, kneeling,
crouching, and crawling. (Tr. 76). In comparison, in this case, the ALJ found that Plaintiff had
fewer severe impairments and a less restrictive RFC, i.e. a reduced range of medium work, even
though the onset date was only a single day after the Administrative Law Judge’s determination in
the prior case. (Tr. 29, 31).
Plaintiff argues that the ALJ erred by failing to give res judicata effect to the earlier
administrative decision. (Doc. 25 p. 5-7). Plaintiff argues that in order for substantial evidence to
support his findings, the ALJ was required to demonstrate that Plaintiff had undergone an
improvement in her condition. (Doc. 25 p. 7). Plaintiff contends that the ALJ should have more
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fully and fairly developed the record by obtaining records from Plaintiff’s previous claim. (Doc.
25 p. 7).
In response, Defendant argues that res judicata does not apply in the instant case because
the ALJ is considering a different period than previously adjudicated. (Doc. 28 p. 5). In addition,
Plaintiff contends that applying administrative res judicata would for the most part disfavor
claimants because in typical cases, the prior claim was denied and adoption of the prior findings
would again result in denial. (Doc. 28 p. 5).
Plaintiff acknowledges that the Eleventh Circuit Court of Appeals has not issued a
published decision adopting the rule of administrative res judicata she proposes. Instead, Plaintiff
primarily relies on two out-of-circuit cases to advance her argument: Drummond v. Commissioner,
126 F.3d 837 (6th Cir. 1997) and Lively v. Secretary of Health and Human Services, 820 F.2d 1391
(4th Cir. 1987). The Court acknowledges that at least one District Court in the Middle District of
Florida has applied administrative res judicata in accordance with Drummond and Lively. Gallart
v. Apfel, 2000 WL 782955 (M.D. Fla. June 13, 2000).
In Drummond, the Sixth Circuit analyzed whether res judicata applied against the
Commissioner of Social Security.
A claimant’s application for DIB benefits was denied.
Drummond, 126 F.2d at 839. In the decision, the ALJ found that the claimant was capable of
performing sedentary level work. Id. At the time of the ALJ’s decision, the claimant was 49 years
old which under the applicable regulations is classified as a “younger” individual. Id. The claimant
subsequently filed another application for DIB and was again denied. Id.
In the second
determination, the ALJ found the claimant was capable of medium level work. Id. At the time of
the second determination, the claimant was between 50 and 54 years old which is considered “a
person approaching advanced age.” Id. If the claimant had been determined to have a RFC of
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sedentary work, as decided in the first determination, the claimant would have been entitled to
disability benefits under the regulations. Id.
The Sixth Circuit held that the doctrine of res judicata applied to the Commissioner and
“[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is bound by the
findings of a previous ALJ.” Id. at 842. The Sixth Circuit found that “[t]he burden is on the
Commissioner to prove changed circumstances” to show that res judicata should not apply. Id.
The Sixth Circuit remanded the case with instructions for the district court to remand for an award
of benefits. Id.
The facts in Lively follow a similar pattern. A claimant’s application for disability benefits
was denied. Lively, 820 F.2d at 1391-92. The claimant subsequently filed another application. Id.
at 1392. In the second application, the claimant had changed age categories and if the RFC that
was previously found was determined to apply, the claimant would be entitled to disability benefits
under the regulations. Id. In the second determination, however, the ALJ determined that the
claimant has a less restrictive RFC than before and denied the claim. The court determined that
res judicata prevented the subsequent ALJ’s from finding a more restrictive RFC absent evidence
of medical improvement, explaining “[p]rinciples of finality and fundamental fairness drawn from
§ 405(h), indicate that the Secretary must shoulder the burden of demonstrating that he claimant’s
condition had improved sufficiently to indicate that the claimant was capable of performing
medium work.” Id.
In this case, the Court need not determine whether it should adopt the application of
administrative res judicata as set forth in Drummond and Lively because even if the Court were to
apply administrative res judicata, Plaintiff has failed to show that remand is warranted. In
Drummond and Lively, if the second ALJ had adopted the first ALJ’s RFC findings, then the
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claimants would have been entitled to benefits pursuant to the Grids. The instant case differs from
Drummond and Lively in a crucial way. Here, even if the ALJ had adopted the RFC contained in
the first decision dated June 5, 2013, i.e., that Plaintiff could perform a reduced range of light
work, the Grids would not direct that Plaintiff was disabled. In the instant case, Plaintiff was 51
years old on her date last insured, which is defined as an individual closely approaching advanced
age. (Tr. 35); 20 C.F.R. § 404.1563. The Grids direct that an individual with a maximum sustained
work capability limited to light work who is closely approaching advanced age, and who is a high
school graduate is not disabled. 20 C.F.R. Pt. 404, Subpt. P. App. 2, Grid Rule 202.13-15. In other
words, if the Court were to apply the doctrine of res judicata as Plaintiff requests, the doctrine
would direct a finding that Plaintiff is not disabled.
Plaintiff has failed to show that the ALJ erred and the Court will not reverse and remand
this case with instructions for the ALJ to apply res judicata to the previous administrative decision.
B) Whether the ALJ erred by failing to find diverticulitis and/or irritable bowel
syndrome is a severe impairment.
Plaintiff argues that the ALJ erred by failing to find that Plaintiff’s irritable bowel
syndrome and diverticulitis were severe impairments despite evidence in the record indicating
diagnosis of these conditions and complaints of stomach cramping and horrible diarrhea. (Doc. 25
p. 9). In response, Defendant argues that an ALJ is not required to identify all severe impairments
at step two and that Plaintiff failed to prove her irritable bowel syndrome and diverticulitis were
severe impairments. (Doc. 28 p. 9-10).
According to the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe,” but only that the ALJ considered
the claimant’s impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec.,
382 F. App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments
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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)).
In this case, at step two, the ALJ found that Plaintiff had the severe impairments of major
depressive disorder, PTSD, diabetes mellitus, generalized arthritis, and complications of gall
bladder disease. (Tr. 29). Thus, the satisfied the threshold requirement of step two. Despite finding
that these conditions were not severe impairment, the ALJ considered them in formulating his
RFC. The ALJ noted that Plaintiff reported having irritable bowel syndrome, diverticulitis, and
possible Crohn' s disease. (Tr. 32). The ALJ noted that Plaintiff had been diagnosed with chronic
diarrhea, which she claims worsened after a gall bladder removal. (Tr. 32). The ALJ noted that
Plaintiff had an exacerbation of the condition and reported to Dr. Quero on July 1, 2013, that she
normally had three bowel movements per day, but she had been having twenty for the past couple
of days. (Tr. 32). The ALJ observed that Dr. Quero said he believed her diarrhea was due in part
to taking large doses of Metformin and eating a high fat diet. (Tr. 32). The ALJ noted that Dr.
Quero reduced Plaintiff’s dosage of Metformin and recommended diet changes. (Tr. 32). The ALJ
observed that at a follow-up visit on July 11, 2013, Plaintiff reported her diarrhea had decreased.
(Tr. 32). It was noted that she reported that “[t]reatment improves symptoms.” (Tr. 339).
The ALJ satisfied the requirements of step two and considered Plaintiff’s irritable bowel
syndrome and diverticulitis in formulating his RFC. Plaintiff has failed to show that the ALJ has
committed reversible error in evaluating Plaintiff’s medical conditions.
C) Whether the ALJ erred by failing to develop the record as to Plaintiff’s past
relevant work.
Plaintiff argues that the ALJ erred by failing to develop the record as to Plaintiff’s past
relevant work. (Doc. 25 p. 10-11). Plaintiff contends that there is no evidence that she performed
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the job of general clerk, of if she did, that she performed the work at the substantial gainful activity
level. (Doc. 25 p. 10). Plaintiff notes that in the previous administrative decision, the vocational
expert testified that Plaintiff had past relevant work as a food service operator. (Doc. 25 p. 11).
Plaintiff argues that the ALJ should have obtained the claims file from the prior application and
questioned Plaintiff in more detail about her past work to determine if she had past relevant work
as a general clerk. (Doc. 25 p. 11).
Here, the Court finds that any error the ALJ committed in finding Plaintiff could return to
her past relevant work is harmless as the ALJ continued to step five and made the alternative
finding that were jobs that existed in the national economy in significant numbers that Plaintiff
could have performed, namely the jobs of “cleaner/hospital,” “hand packager,” and “laundry
worker.” (Tr. 36). The Court addresses whether substantial evidence supports the ALJ’s step five
finding below.
D) Whether the ALJ erred by failing to find and resolve an inconsistency between
the vocational expert’s testimony and the DOT.
Plaintiff argues that the ALJ erred by failing to resolve an inconsistency between the
testimony of the vocational expert and the Dictionary of Occupational Titles (“DOT”) as required
by Social Security Ruling 00-4p. (Doc. 25 p. 12). Specifically, Plaintiff contends that the DOT
provides that the jobs of hand packager and laundry worker involve frequent exposure to heat,
while the hypothetical posed to the vocational expert provided that the individual should avoid
extreme temperatures on no more than an occasional basis. (Doc. 25 p. 12-13). In response,
Defendant argues that the ALJ complied with SSR 00-4p by asking the vocational expert about
any possible conflict between his testimony and the information in the DOT. (Doc. 28 p. 15).
SSR 00–4p states that when a vocational expert provides evidence about the requirements
of a job or occupation, the ALJ has an affirmative responsibility to ask about any possible conflict
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between that VE's testimony and the DOT. SSR 00–4p. When the vocational expert's testimony is
inconsistent with the DOT, the ALJ must resolve this conflict before relying on the vocational
expert to determine whether the individual is or is not disabled. Id.
In this case, the ALJ specifically asked the vocational expert if his testimony was consistent
with the provisions of the DOT. (Tr. 64). The vocational expert responded, “It has been, your
honor, with the exception of testimony regarding the bathroom break and attention and
concentration as the DOT does not address those issues. And there I relied on my experience in
the field of vocational rehabilitation, job development and analysis.” (Tr. 64). Plaintiff did not
offer any evidence at the hearing controverting the vocational expert’s testimony nor object to the
opinion. See Leigh v. Comm’r of Soc. Sec., 496 F. App’x 973, 975 (11th Cir. 2012). There was no
apparent inconsistency between the vocation expert’s testimony and the DOT, and therefore, the
ALJ’s opinion was supported by substantial evidence.
III.
Conclusion
The decision of the Commissioner is AFFIRMED pursuant to sentence four of Section
405(g). The Clerk of the Court is directed to enter judgment consistent with this opinion and,
thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 20, 2017.
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Copies furnished to:
Counsel of Record
Unrepresented Parties
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