Dawson v. Commissioner of Social Security
Filing
14
MEMORANDUM OF DECISION re 1 Complaint. It is ORDERED that the final decision of the Commissioner is AFFIRMED and the Clerk is directed to enter judgment for the Commissioner and against Claimant and close the case. Signed by Magistrate Judge Daniel C. Irick on 7/31/2018. (SPM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
THERESA ANN DAWSON,
Plaintiff,
v.
Case No: 6:17-cv-782-Orl-DCI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Theresa Ann Dawson (Claimant) appeals to the District Court from a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for disability
insurance benefits. Doc. 1; R. 1-3, 157-160. Claimant argued that the Administrative Law Judge
(the ALJ) erred by failing to apply the proper legal standards in determining whether Claimant had
a medically determinable impairment prior to her date last insured. Doc. 13 at 10-13. For the
reasons set forth below, the Commissioner’s final decision is AFFIRMED.
I.
THE ALJ’S DECISION
In December 2014, Claimant filed an application for disability insurance benefits. R. 13,
157-60. Claimant alleged a disability onset date of December 1, 2013. Id.
The ALJ issued her decision on November 14, 2016. R. 13-17. In her decision, the ALJ
found that Claimant’s date last insured was December 31, 2013. R. 15. The ALJ then found that
Claimant did not have any medically determinable impairments through the date last insured. R.
15-17. The ALJ therefore found that Claimant was not disabled between the alleged onset date
and the date last insured. R. 17.
II.
STANDARD 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) (citations omitted).
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) and Richardson
v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner’s decision is supported by
substantial evidence, the court will affirm, even if the reviewer would have reached a contrary
result as finder of fact, and 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 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. The court “‘may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner].’” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
III.
ANALYSIS
At step two of the sequential evaluation process, the ALJ must determine whether the
claimant has a medically determinable impairment or combination of impairments that is “severe.”
20 C.F.R. § 404.1520(a)(4)(ii), (c). “An 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
-2-
individual’s ability to work, irrespective of age, education or work experience.” McDaniel v.
Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (stating that step two is a threshold inquiry that
“allows only claims based on the most trivial impairments to be rejected”); see also 20 C.F.R. §
404.1521(a) (“An impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.1”).2 Although the
claimant bears the burden of proof in establishing that the claimant suffers from a severe
impairment or combination of impairments, “claimant’s burden at step two is mild.” McDaniel,
800 F.2d at 1031; see Gibbs v. Barnhart, 156 F. App’x 243, 246 (11th Cir. 2005) (stating that the
claimant must prove that he or she suffers from a severe impairment or combination of
impairments).3 If at step two the ALJ finds that a claimant has even one severe impairment, then
the ALJ must proceed to the next sequential steps.
As an initial matter, the Court finds that Claimant’s single, brief argument attacking the
ALJ’s decision in this case is not clear on its face and makes judicial review particularly difficult
in this case. That said, it appears that Claimant argues that the ALJ erred by not correctly applying
Social Security Ruling (SSR) 83-20 to the facts of her case. Doc. 13 at 10-13. In support, Claimant
1
The phrase “basic work activities” is defined as “abilities and aptitudes necessary to do most
jobs.” 20 C.F.R. § 404.1521(b). Examples of basic work activities include “(1) Physical functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)
Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering
simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers
and usual work situations; and (6) Dealing with changes in a routine work setting.” 20 C.F.R. §
404.1521(b)(1)-(6).
2
Effective March 27, 2017, section 404.1521(a) was moved to section 404.1522(a). See Revisions
to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01 (Jan. 18, 2017).
3
In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See
11th Cir. R. 36-2.
-3-
argues that pursuant to SSR 83-20 the ALJ may infer that a claimant’s disability began prior to the
date of the claimant’s first recorded medical examination based upon evidence obtained from
family members and the opinion of a “medical advisor” but that the ALJ failed to consider evidence
other than the medical findings. Id. In response, the Commissioner argues that SSR 83-20 is not
applicable to the facts of this case. Doc. 13 at 18-19.
Even assuming that SSR 83-20 is applicable to this case – and the Court does not make the
finding that it is – the ALJ complied with SSR 83-20 and, thus, Claimant’s argument is without
merit. The ALJ sought the opinion of a “medical advisor” – Scott Belliston, D.O. – when
determining whether Claimant suffered from disabling symptoms in December 2013. Doc. 627,
633. And it is apparent from the ALJ’s decision that the ALJ considered all of the evidence,
including the testimony of Claimant’s husband. 4 See Doc. 15-17, 28. Accordingly, the Court
finds that Claimant’s allegation that the ALJ’s failed to comply with SSR 83-20 by failing to
consider evidence other than the medical findings is without merit. To the extent that Claimant
was attempting to raise some other issue in relation to SSR 83-20, Claimant waived the argument
by raising it in a perfunctory manner. See, e.g., Jacobus v. Comm’r of Soc. Sec., No. 15-14609,
2016 WL 6080607, at *3 n.2 (11th Cir. Oct. 18, 2016) (stating that claimant’s perfunctory
argument was arguably abandoned); Gombash v. Comm’r of Soc. Sec., 566 Fed. App’x. 857, 858
n.1 (11th Cir. 2014) (stating that the issue was not properly presented on appeal where claimant
provided no supporting argument); NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir.
1998) (“Issues raised in a perfunctory manner, without supporting arguments and citation to
authorities, are generally deemed to be waived.”); Gaskey v. Colvin, No. 4:12-CV-3833-AKK,
4
The ALJ specifically noted Claimant’s husband’s testimony that Claimant began experiencing
symptoms in 2013. R. 16. In addition, the ALJ discussed Dr. Belliston’s opinion that Claimant
began experiencing disabling limitations in November 2013. Id.
-4-
2014 WL 4809410, at *7 (N.D. Ala. Sept. 26, 2014) (refusing to consider claimant’s argument
when claimant failed to explain how the evidence undermined the ALJ’s decision) (citing Singh v.
U.S. Atty. Gen, 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an
issue exists, without further argument or discussion, constitutes abandonment of that issue and
precludes our considering the issue on appeal.”)).
To the extent Claimant’s argument could be interpreted as an argument that the ALJ failed
to properly weigh Dr. Belliston’s opinion that Claimant began experiencing disabling limitations
in November 2013, Claimant’s argument is also without merit. First, Dr. Belliston was not a
treating physician and, as such, his opinion was not entitled to any special deference. See 20 C.F.R.
§ 404.1527(c). Second, contrary to Claimant’s incorrect assertion that the “only reason the ALJ
gave for rejecting [Claimant’s] testimony was that she was not treated for PLS until after her date
last insured,” the ALJ provided an adequate explanation for rejecting Dr. Belliston’s opinion.
Specifically, the ALJ stated as follows:
The undersigned assigned the opinion that the disabling limitations began in
November 2013 little weight because it is inconsistent with the evidence of record.
The evidence shows that on January 20, 2014, the claimant appeared at Progressive
Wellness Center for regular medication refills (Exhibit 21F/7). The notes state that
she is doing well on meds and had not lost weight. There were no significant
symptoms listed and the assessment was menopause. These and other records
shortly after the date last insured support a finding that she was not yet experiencing
disabling symptoms in December 2013.
R. 16. The reason offered by the ALJ for assigning little weight to Dr. Belliston’s opinion – that
Claimant’s medical records from early 2014 support a finding that Claimant was not experiencing
disabling symptoms in December 2013 – is supported by substantial evidence. See R. 311-12,
318-20, 347-49, 644.
Finally, to the extent that Claimant’s argument could be interpreted to be that the ALJ’s
decision was not supported by substantial evidence, Claimant’s argument is without merit.
-5-
Substantial evidence supports the ALJ’s finding that Claimant’s medical records from early 2014
demonstrate that Claimant was not experiencing disabling symptoms in December 2013. See R.
16, 311-12, 318-20, 347-49, 644. Regardless, Claimant failed to argue that the ALJ’s finding is
not supported by substantial evidence and, thus, waived the argument. See, e.g., Jacobus, 2016
WL 6080607, at *3 n.2.
In sum, even if the Court were to accept Claimant’s premise that SSR 83-20 applies to this
case, Claimant’s argument is without merit. It is apparent from the ALJ’s decision that she
considered all of the evidence and sought the opinion of a neurologist when determining whether
Claimant was experiencing disabling symptoms in December 2013. R. 15-17, 627. The ALJ then
determined that Claimant was not experiencing disabling symptoms in December 2013. That
determination is supported by substantial evidence.
IV.
CONCLUSION
For the reasons stated above, it is ORDERED that:
1.
The final decision of the Commissioner is AFFIRMED; and
2.
The Clerk is directed to enter judgment for the Commissioner and against
Claimant and close the case.
DONE and ORDERED in Orlando, Florida on July 31, 2018.
Copies furnished to:
Counsel of Record
-6-
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Emily Ruth Statum
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
3505 Lake Lynda Drive
Suite 300
Orlando, Florida 32817-9801
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?