Dickson v. Commissioner of Social Security

Filing 24

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 3/9/2018. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JOSHUA DICKSON,
Plaintiff,
v.

Case No: 5:17-cv-31-Oc-DNF

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Joshua Dickson, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claim for Supplemental Security
Income (“SSI”). 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 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
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 his 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).
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 he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he 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 his 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 his 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 he meets this burden, he 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 his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his 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 his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he 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
the claimant is capable of performing other work, he 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,

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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. 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 he 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 SSI on January 31, 2013, alleging a disability
onset date of December 10, 2011. (Tr. 188-94). Plaintiff’s application was denied initially on June
April 3, 2013, and upon reconsideration on September 24, 2013. (Tr. 121-26, 132-36). Plaintiff
requested a hearing and, on September 2, 2015, an administrative hearing was held before
Administrative Law Judge Douglas A. Walker (“the ALJ”). (Tr. 30-59). On October 7, 2015, the
ALJ entered a decision finding that Plaintiff was not under a disability since the application date
January 31, 2013. (Tr. 13-24). Plaintiff filed a request for review which the Appeals Council
denied on December 1, 2016. (Tr. 1-6). Plaintiff initiated this action by filing a Complaint (Doc.
1) on January 25, 2017.
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 since January 31, 2013. (Tr. 15). At step two, the ALJ found that
Plaintiff had the following severe impairments: degenerative disc disease and major depressive
disorder. (Tr. 15). 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. 15).

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Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 416.967(b), limited as follows:
the claimant requires work which is simple and unskilled. The claimant
can lift and carry twenty (20) pounds occasionally and ten (10) pounds
frequently; he can stand or walk for a total of six (6) hours, he can sit for
a total of six (6) hours in an eight-hour day; he should avoid frequent
ascending and descending stairs; he should avoid frequent pushing and
pulling motions with his lower extremities (foot controls) within the
aforementioned weight restrictions; due to mild to moderate pain and
medication side effects, he should avoid hazards in the workplace such as
unprotected areas of moving machinery; heights; ramps; ladders;
scaffolding; and on the ground, unprotected areas of holes and pits; and he
could perform each of the following postural activities occasionally:
stooping, balancing, kneeling, crouching, and crawling, but not the
climbing of ropes or scaffolds, and of ladders exceeding 6 feet. The
claimant has nonexertional mental limitations which frequently affect his
ability to concentrate upon complex or detailed tasks but he would remain
capable of understanding, remember, and carrying out simple job
instructions, making work-related judgments and decisions, responding
appropriately to supervision, co-workers, and work situations, and dealing
with changes in a routine work setting; he should avoid stressful situations
such as frequently working with co-workers in a team; frequently working
directly with the public; working with supervisors or co-workers where
frequent interpersonal interaction or discussion is required; making few
decision; and using little judgment.
(Tr. 17). At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as
a compiler. (Tr. 22).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (Tr. 22). Specifically, the ALJ found that
Plaintiff can perform such occupations as router, collater operator, and marker II. (Tr. 23). The
ALJ concluded that Plaintiff had not been under a disability since January 31, 2013. (Tr. 23).

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II.

Analysis
Plaintiff raises a single issue on appeal: whether the ALJ erred by failing to fully and

properly develop the record. (Doc. 22 p. 2, 5-7). In his brief, Plaintiff notes that the last evaluation
regarding his physical impairments was more than two years before the date of the ALJ’s decision,
and that he was unable to afford medical treatment for his physical impairments. (Doc. 22 p. 6-7).
Plaintiff argues that the ALJ should have ordered an updated consultative examination to include
completion of a physical RFC assessment before making his decision. (Doc. 22 p. 7). In addition,
Plaintiff argues that the ALJ improperly suggested that Plaintiff’s complaints of pain were not
entirely credible because Plaintiff was able to afford cigarettes, an expensive habit. (Doc. 22 p. 7).
Plaintiff argues that the ability to afford cigarettes is not tantamount to the ability to afford health
care. (Doc. 22 p. 7).
In response, Defendant argues that the ALJ adequately developed the record and substantial
evidence supports the ALJ’s finding that Plaintiff is capable of performing a reduced range of light
work. (Doc. 23 p. 7-13). Further, Defendant argues that the ALJ properly discussed Plaintiff’s
continued pack-a-day cigarette use as a factor that undermined his statements that he was
noncompliant with treatment, such as medication, because of lack of resources. (Doc. 23 p. 13).
An ALJ has a basic obligation to fully and fairly develop the record. Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997) (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The obligation to fully and fairly develop the record exists if a claimant has waived the right to
retained counsel, and even if the claimant is represented by counsel. See Cowart, 662 F.2d at 735–
36. This obligation rises to the level of a “special duty” only where a claimant has waived his right
to representation by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). “[T]here must
be a showing of prejudice before it is found that the claimant’s right to due process has been

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violated to such a degree that the case must be remanded to the Secretary for further development
of the record.” Id.
Demonstrating prejudice “‘at least requires a showing that the ALJ did not have all of the
relevant evidence before him in the record . . . or that the ALJ did not consider all of the evidence
in the record in reaching his decision.’” Coven v. Comm’r of Soc. Sec., 384 F. App’x 949, 951
(11th Cir. June 29, 2010) (quoting Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)). “The
court should be guided by whether the record reveals evidentiary gaps which result in unfairness
or clear prejudice.” Coven, 384 F. App’x at 951 (quoting Graham, 129 F.3d at 1423 (quotation
marks omitted).
The regulations provide an ALJ “may” order a consultative examination “if” the evidence
is insufficient to determine whether the claimant is disabled or the adjudicator cannot reach a
conclusion about whether the claimant is disabled. See 20 C.F.R. § 416.920b(c)(3). Thus, an ALJ
“is not required to order a consultative examination as long as the record contains sufficient
evidence for the [ALJ] to make an informed decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty, 245 F.3d at 1281).
In this case, the Court finds that the ALJ did not err by failing to fully and fairly develop
the record. As Defendant notes, Plaintiff was represented in the administrative proceeding (Tr.
30); thus, the ALJ did not have any heightened duty to develop the record. See Brown, 44 F.3d at
934; see also Pennington v. Comm’r of Soc. Sec., 652 F. App’x 862, 872 (11th Cir. 2016)
(“Pennington ultimately bore the burden of producing evidence to support his claim of disability;
because he was represented by counsel in the administrative proceeding, the ALJ was not subject
to the heightened duty to develop the record that applies in proceedings involving unrepresented
claimants.”) (citations omitted). The ALJ had adequate medical and non-medical evidence to

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assess Plaintiff’s allegations of disabling back and neck pain. (Tr. 15-22). For instance, as
discussed in the ALJ’s decision, the record contained treatment notes, which reflected “essentially
normal” findings on musculoskeletal examination. (Tr. 19, 535-38). Additionally, the medical
records did not show Plaintiff required additional back surgeries, invasive treatments, recurrent
emergency visits, or hospitalizations for his back pain during the relevant period. (Tr. 19, 533).
Further, the record contained opinion evidence regarding Plaintiff’s physical impairments.
In September 2013, State agency medical consultant David Guttman, M.D., reviewed Plaintiff’s
case file and opined he could perform work consistent with the light exertional range. (Tr. 19, 11113). State agency medical consultants are highly qualified specialists who are also experts in the
Social Security disability programs, and their opinions may be entitled to great weight if the
evidence supports their opinions. See 20 C.F.R. § 416.927(e)(2)(i). Dr. Guttman’s opinion
supports the ALJ’s determination that Plaintiff retained the ability to perform a range of light work
during the relevant period.
The ALJ further developed the record by obtaining testimony from Plaintiff regarding his
back pain, treatment history, and activities. (Tr. 33-49). The record also contained reports of
Plaintiff’s functioning from Plaintiff and a third party, which indicated Plaintiff could take care of
his personal care independently, make simple meals, perform some household chores, drive, and
shop. (Tr. 16, 242-44, 257-64, 288-302). Notably, in addition to the foregoing medical and nonmedical evidence, the ALJ also confirmed at the hearing that Plaintiff’s counsel had no objections
to the exhibits of record (Tr. 32-58), further undermining Plaintiff’s claim that the ALJ erred in
developing the record.
Further, the Court does not find remand appropriate due to the ALJ’s treatment of
Plaintiff’s cigarette use. In his decision, the ALJ found that Plaintiff’s continued cigarette smoking

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adversely affected his overall credibility that he had no more medical treatment because of lack of
insurance, income, and resources. (Tr. 22). An ALJ’s consideration of a claimant’s use of
discretionary funds to purchase cigarettes is an appropriate factor to consider. See Moore v. Soc.
Sec. Admin., Comm’r, 649 F. App’x 941, 944 (11th Cir. 2016).
It is a claimant’s burden to demonstrate that he or she is disabled under the Social Security
Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). Here, Plaintiff has failed to carry
his burden of demonstrating that he is disabled. Accordingly, the Court will not disturb the ALJ’s
decision upon review.
III.

Conclusion

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.
DONE and ORDERED in Fort Myers, Florida on March 9, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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