Hendricks v. Commissioner of Social Security
OPINION AND ORDER affirming the Commissioner's final decision; directing Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 9/16/2013. (KAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:12-cv-934-J-JRK
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
OPINION AND ORDER2
Jerome Hendricks (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claim for disability insurance benefits (“DIB”). His
alleged inability to work is due to “heart problems, cardiac d[e]fibrillator issues and high blood
pressure problems.” Transcript of Administrative Proceedings (Doc. No. 9; “Tr.”), filed
October 26, 2012, at 42. On November 20, 2008, Plaintiff filed an application for DIB,
alleging an onset disability date of September 19, 2008. Tr. at 111-12. Plaintiff subsequently
amended his alleged onset date to September 1, 2009. Tr. at 29. Plaintiff’s claim was
denied initially, Tr. at 43-44, and was denied upon reconsideration, Tr. at 52-53. On
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 10), filed
October 29, 2012; Reference Order (Doc. No. 12), signed October 30, 2012 and entered October 31,
November 30, 2010, a hearing was held before an Administrative Law Judge (“ALJ”), during
which Plaintiff and a vocational expert (“VE”) testified. Tr. at 25-39. At the time of the
hearing, Plaintiff was fifty-three (53) years old. Tr. at 111 (indicating Plaintiff’s date of birth).
The ALJ issued an unfavorable decision on December 14, 2010, finding Plaintiff not disabled
through the date of the decision. Tr. at 12-20. On July 3, 2012, the Appeals Council denied
Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision the final decision
of the Commissioner. On August 17, 2012, Plaintiff commenced this action under 42 U.S.C.
§ 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
Plaintiff raises two (2) issues on appeal: 1) whether Plaintiff meets Listing 4.023
dealing with chronic heart failure; and 2) whether the ALJ erred by finding Plaintiff’s
testimony largely incredible. Memorandum in Support of Complaint (Doc. No. 14; “Pl.’s
Mem.”), filed November 29, 2012, at 6-10. Within the second issue, Plaintiff states that
“some opinion testimony from a cardiac specialist should be obtained.” Id. at 10. On
February 26, 2013, Defendant filed a memorandum addressing the issues raised by Plaintiff.
See Memorandum in Support of the Commissioner’s Decision (Doc. No. 17; “Def.’s Mem.”).
After a thorough review of the entire record and consideration of the parties’ respective
memoranda, the Commissioner’s final decision is due to be affirmed for the reasons
In the heading of Plaintiff’s first issue, Plaintiff cites to Listing 4.08. Pl.’s Mem. at 6. The
body of Plaintiff’s argument, however, refers to Listing 4.02. Id. at 7-8.
II. The ALJ’s Decision
When determining whether an individual is disabled,4 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 14-19. At step one,
the ALJ observed that Plaintiff “has not engaged in substantial gainful activity since
September 1, 2009, the [amended] alleged onset date.” Tr. at 14 (emphasis and citation
omitted). At step two, the ALJ found that Plaintiff suffers from “the following severe
impairments: nonischemic cardiomyopathy status post placement of automatic implantable
cardioverter-defibrillator; and chronic obstructive pulmonary disease.” Tr. at 14 (emphasis
and citation omitted). At step three, the ALJ ascertained that Plaintiff “does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 15 (emphasis and citation
“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or 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).
omitted). The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”): Plaintiff can “perform light work . . . except he must work in a mildly clean
environment, with no extreme dust or fumes.” Tr. at 15 (emphasis omitted).
At step four, the ALJ found Plaintiff “is unable to perform any past relevant work” as
a “truck driver.” Tr. at 18 (emphasis and citation omitted from first quotation). At step five,
after “considering [Plaintiff’s] age, education, work experience, and [RFC],” the ALJ
determined that Plaintiff “has acquired work skills from past relevant work that are
transferable to other occupations with jobs existing in significant numbers in the national
economy” that Plaintiff can perform, Tr. at 19 (emphasis and citation omitted), such as “a
“private domestic chauffer” and an “electrical accessory assembler,” Tr. at 19. The ALJ
concluded that Plaintiff “has not been under a disability . . . from September 1, 2009,
through the date of th[e D]ecision.” Tr. at 384 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d
1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere
scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the
evidence; rather, the entire record is reviewed to determine whether “the decision reached
is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported
by substantial evidence–even if the evidence preponderates against the Commissioner’s
findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per
As noted above, Plaintiff raises two (2) issues. Each is addressed in turn.
Listing 4.02 states as follows:
4.02 Chronic heart failure while on a regimen of prescribed treatment, with symptoms and signs
described in 4.00D2. The required level of severity for this impairment is met when the requirements
in both A and B are satisfied.
A. Medically documented presence of one of the following:
1. Systolic failure (see 4.00D1a(i)), with left ventricular end diastolic dimensions
greater than 6.0 cm or ejection fraction of 30 percent or less during a period of
stability (not during an episode of acute heart failure); or
2. Diastolic failure (see 4.00D1a(ii)), with left ventricular posterior wall plus septal
thickness totaling 2.5 cm or greater on imaging, with an enlarged left atrium greater
than or equal to 4.5 cm, with normal or elevated ejection fraction during a period of
stability (not during an episode of acute heart failure);
B. Resulting in one of the following:
Plaintiff contends that he meets the criteria outlined in Listing 4.02. Pl.’s Mem. at 6-9.
Plaintiff focuses on testing showing his “ejection fraction” and a note reflecting that “Plaintiff
had a New York Heart Association classification of II to III.” Id. at 7-8.
At step three of the sequential evaluation process, the burden rests on the claimant
to prove the existence of a listing level impairment. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991). Mere diagnosis of a listed impairment is not sufficient. See, e.g., id.; see
also Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). “To meet a Listing, a
claimant must have a diagnosis included in the Listings and must provide medical reports
1. Persistent symptoms of heart failure which very seriously limit the ability to
independently initiate, sustain, or complete activities of daily living in an individual for
whom an MC, preferably one experienced in the care of patients with cardiovascular
disease, has concluded that the performance of an exercise test would present a
significant risk to the individual; or
2. Three or more separate episodes of acute congestive heart failure within a
consecutive 12–month period (see 4.00A3e), with evidence of fluid retention (see
4.00D2b(ii)) from clinical and imaging assessments at the time of the episodes,
requiring acute extended physician intervention such as hospitalization or emergency
room treatment for 12 hours or more, separated by periods of stabilization (see
3. Inability to perform on an exercise tolerance test at a workload equivalent to 5
METs or less due to:
a. Dyspnea, fatigue, palpitations, or chest discomfort; or
b. Three or more consecutive premature ventricular contractions (ventricular
tachycardia), or increasing frequency of ventricular ectopy with at least 6
premature ventricular contractions per minute; or
c. Decrease of 10 mm Hg or more in systolic pressure below the baseline
systolic blood pressure or the preceding systolic pressure measured during
exercise (see 4.00D4d) due to left ventricular dysfunction, despite an
increase in workload; or
d. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or
20 C.F.R. Pt. 404, Subpt. P, App. 1.
documenting that the conditions meet the specific criteria of the Listings and the duration
requirement.” Wilson, 284 F.3d at 1224 (internal quotations and citations omitted). “To
equal a Listing, the medical findings must be at least equal in severity and duration to the
listed findings.” Id. (internal quotations and citations omitted).
The ALJ’s Decision contains a detailed summary of the medical evidence, the
medical opinions, and Plaintiff’s testimony. Tr. at 14-18. The ALJ even found that Plaintiff’s
nonischemic cardiomyopathy is a severe impairment. Tr. at 14. The ALJ explicitly indicated
that he “considered [Plaintiff’s] nonischemic cardiomyopathy under [Listing] 4.08
(cardiomyopathies), and chronic obstructive pulmonary disease under [Listing] 3.02
(Chronic Pulmonary Insufficiency).”
Tr. at 15 (emphasis omitted).
The ALJ found,
“however, [that] the evidence does not support that [Plaintiff’s] impairments meets or
medically equals the criteria [of those Listings], or any other section in the Listing of
Impairments.” Tr. at 15. After reviewing the record, the undersigned concludes that the
ALJ’s finding with respect to the Listings is supported by substantial evidence.
Additionally, the undersigned notes that the language quoted in Plaintiff’s
Memorandum that he attributes to Listing 4.02 is not complete, is not accurate, and is the
only legal authority upon which Plaintiff relies. In support of his argument, Plaintiff selected
favorable evidence from the record in an attempt to show that he meets the Listing. The
ALJ, however, reviewed the entirety of the record before making his findings. As noted
above, the ALJ’s Decision is supported by substantial evidence. No error can be found in
Plaintiff’s Credibility / Additional Opinion Evidence
First, the undersigned addresses Plaintiff’s arguments challenging the ALJ’s
credibility finding. Second, Plaintiff’s statement regarding the need for additional opinion
evidence is discussed.
Plaintiff’s second issue seems to focus on the ALJ’s discrediting of Plaintiff’s
testimony.6 Pl.’s Mem. at 9-10. Specifically, Plaintiff references the ALJ’s findings with
respect to Plaintiff’s smoking habit and his testimony relating to his fatigue. Id.
“[T]o establish a disability based on testimony of pain and other symptoms, the
claimant must satisfy two parts of a three-part showing: (1) evidence of an underlying
medical condition; and (2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical condition can reasonably be
expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th
Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s
subjective testimony supported by medical evidence that satisfies the standard is itself
sufficient to support a finding of disability.” Holt, 921 F.3d at 1223. Although “credibility
determinations are the province of the ALJ,” Moore v. Barnhart, 405 F.3d 1208, 1212 (11th
Cir. 2005), “explicit and adequate reasons” must be articulated if the ALJ discredits the
claimant’s testimony, Wilson, 284 F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury
v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (stating that “after considering a claimant’s
To the extent Plaintiff reiterates arguments he made in the first issue, those arguments
are not re-addressed here.
complaints of pain [or other subjective symptoms], the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence”).
“[C]redibility determinations are the province of the ALJ.” Moore, 405 F.3d at 1212.
The ALJ “must articulate explicit and adequate reasons” for finding a claimant “not credible.”
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “When evaluating a claimant’s
subjective symptoms, the ALJ must consider such things as: (1) the claimant’s daily
activities; (2) the nature, location, onset, duration, frequency, radiation, and intensity of pain
and other symptoms; (3) precipitating and aggravating factors; (4) adverse side-effects of
medications; and (5) treatment or measures taken by the claimant for relief of symptoms.”
Davis v. Astrue, 287 F. App’x 748, 760 (11th Cir. 2008) (unpublished) (citing 20 C.F.R. §
404.1529(c)(3)(i)-(vi)). After considering the claimant’s subjective complaints, “the ALJ may
reject them as not creditable, and that determination will be reviewed for substantial
evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)).
The ALJ summarized Plaintiff’s testimony before finding that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [according to the ALJ, Plaintiff’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are inconsistent
with the” the ALJ’s RFC determination. Tr. at 16 (emphasis omitted). The ALJ then detailed
his reasons for finding Plaintiff’s testimony not entirely credible. In sum, those reasons are
as follows: 1) Plaintiff could perform without difficulty his activities of daily living, including
walking, fishing, reading, and attending church, Tr. at 16 (citing Tr. at 267); Tr. at 18; 2) the
treatment notes of Daniel S. Yip, M.D. reflect that Plaintiff continually did well from a heart
standpoint and that Plaintiff had been advised repeatedly to quit smoking, Tr. at 16-17
(citing 281-83, 290, 293, 299); 3) “[a]lthough [Plaintiff] was disqualified as a driver by his
employers’ DOT physician[, Plaintiff’s] manager tried to gather information to help plead his
case to keep him employed as a driver,” Tr. at 17 (citing Tr. at 285); 4) Plaintiff failed to
“keep a number of medical appointments . . . and failed to follow treatment
recommendations, specifically, to stop smoking . . . [both of which] suggest that the
symptoms may not have been as serious as claimed,” Tr. at 17 (citing Tr. at 276-306, 33558); and 5) Plaintiff “testified that he is unable to lift more than ten pounds; however, . . . [he
also] reported he is able to lift and carry 40 to 50 pounds,” Tr. at 17 (citing Tr. at 159).
Upon review of the record and consideration of the ALJ’s decision with respect to
Plaintiff’s credibility, the undersigned finds that the ALJ articulated “explicit and adequate
reasons” for discrediting Plaintiff’s testimony. Wilson, 284 F.3d at 1225. Those reasons are
supported by substantial evidence.
As with the first issue, no error is found here.
Additional Opinion Evidence
As noted above, Plaintiff makes passing reference to needing additional medical
opinion evidence. Pl.’s Mem. at 10. In referencing the need for additional medical opinion
evidence, Plaintiff does not describe why such additional evidence is necessary, and he
does not provide any legal authority supporting the request.7 Nevertheless, the undersigned
thoroughly reviewed the entire record and finds that “the record contains sufficient evidence
Plaintiff was advised in this Court’s Scheduling Order (Doc. No. 11) entered October 29,
2012 that any challenge to the administrative decision that is not “supported by citation to the record of
the pertinent facts and by citations of the governing legal standards . . . is subject to being disregarded
for insufficient development.”
for the [ALJ] to make an informed decision,” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253,
1269 (11th Cir. 2007) (citing Doughty, 245 F.3d at 1281), and as such, additional medical
opinion evidence is unnecessary.
After a thorough review of the entire record, the undersigned finds that the ALJ’s
Decision is supported by substantial evidence. Accordingly, it is
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
The Clerk of Court is further directed to close the file.
DONE AND ORDERED at Jacksonville, Florida on September 16, 2013.
Counsel of Record
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