CASEY v. BERRYHILL
Filing
20
MEMORANDUM DECISION AND ORDER. Nancy A. Berryhill is substituted for Carolyn W. Colvin as Defendant in this action. The decision of the Commissioner is AFFIRMED, this action is DISMISSED, and the clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 9/25/2017. (sdw)
Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JOHN C. CASEY,
Plaintiff,
vs.
Case No.: 5:16cv138/EMT
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 9, 10). It is now before
the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for
review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s application for disability insurance benefits
(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Fed. R. Civ. P. 25(d), she is therefore automatically substituted for Carolyn W.
Colvin as the Defendant in this case.
Page 2 of 21
Upon review of the record before this court, it is the opinion of the undersigned
that the findings of fact and determinations of the Commissioner are supported by
substantial evidence; thus, the decision of the Commissioner should be affirmed.
I.
PROCEDURAL HISTORY
On October 10, 2012, Plaintiff filed an application for DIB, alleging disability
beginning on January 26, 2011 (Tr. 15).2 His application was denied initially and on
reconsideration, and thereafter he requested a hearing before an administrative law
judge (“ALJ”). A hearing was held on September 30, 2014, and on January 9, 2015,
the ALJ issued a decision in which he found Plaintiff “not disabled,” as defined under
the Act, at any time through the date of his decision (Tr. 15–24). The Appeals
Council subsequently denied Plaintiff’s request for review. Thus, the decision of the
ALJ stands as the final decision of the Commissioner, subject to review in this court.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This
appeal followed.
2
All references to “Tr.” refer to the transcript of Social Security Administration record filed
on September 22, 2016 (ECF No. 14). Moreover, the page numbers refer to those found on the
lower right-hand corner of each page of the transcript, as opposed to those assigned by the court’s
electronic docketing system or any other page numbers that may appear.
Case No.: 5:16cv138/EMT
Page 3 of 21
II.
FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see
tr. 15–24):
(a)
Plaintiff last met the insured status requirement of the Act on June 30,
(b)
Plaintiff did not engage in substantial gainful activity during the period
2014;
from his alleged onset date of January 26, 2011, through his date last insured;
(c)
Through the date last insured, Plaintiff had the following severe
impairments: chronic obstructive pulmonary disease (“COPD”), anxiety disorder,
depressive disorder, and anti-social personality disorder;
(d)
Through the date last insured, Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1;
(e)
Through the date last insured, Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), such
that Plaintiff could lift/carry up to 20 pounds occasionally and up to 10 pounds
frequently. He could sit for six hours in an eight-hour workday and stand or walk for
six hours in an eight-hour workday. He could occasionally climb ladders, ropes, or
Case No.: 5:16cv138/EMT
Page 4 of 21
scaffolds. Plaintiff was to avoid concentrated exposure to humidity, dust, and fumes;
have only frequent contact with the public, coworkers, or supervisors; and work at no
more than a regular pace (no assembly line work, no production rate);
(f)
Through the date last insured, Plaintiff was unable to perform any past
relevant work;
(g)
Plaintiff was born on February 22, 1967, and was 47 years old, which is
defined as a younger individual aged 18–49, on the date last insured;
(h)
Plaintiff had a limited education and was able to communicate in English;
(i)
Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework supported a
finding that Plaintiff was “not disabled,” whether or not he had transferable job skills;
(j)
Through the date last insured, considering Plaintiff’s age, education,
work experience, and RFC, there were jobs that existed in significant numbers in the
national economy that Plaintiff could have performed;
(k)
Plaintiff was not under a disability, as defined in the Act, at any time
from January 26, 2011, the alleged onset date, through June 30, 2014, the date last
insured.
III.
STANDARD OF REVIEW
Case No.: 5:16cv138/EMT
Page 5 of 21
Review of the Commissioner’s final decision is limited to determining whether
the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
Case No.: 5:16cv138/EMT
Page 6 of 21
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “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). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
is not only unable to do his previous work, “but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.
§ 404.1520(a)–(g), the Commissioner analyzes a disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, he is not
disabled.
2.
If the claimant is not performing substantial gainful activity, his
impairments must be severe before he can be found disabled.
Case No.: 5:16cv138/EMT
Page 7 of 21
3.
If the claimant is not performing substantial gainful activity and he has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent him from doing his past
relevant work, he is not disabled.
5.
Even if the claimant’s impairments prevent him from performing his past
relevant work, if other work exists in significant numbers in the national economy that
accommodates his RFC and vocational factors, he is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps
him from performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes
such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
IV.
PLAINTIFF’S PERSONAL AND MEDICAL HISTORY
Case No.: 5:16cv138/EMT
Page 8 of 21
A.
Personal History
At Plaintiff’s hearing, held September 30, 2014, he testified he was 47 years
old, with a seventh grade education. He stated that he last worked full-time as a pipe
fitter and welder, following which he worked his last job for a month on a part-time
basis repairing lawnmower engines (Tr. 35–36). Plaintiff indicated that he could no
longer work because of the breathing issues caused by his COPD, which hospitalized
him a couple of times, and his chronic back pain (Tr. 38). Plaintiff’s back pain
originated from his being shot in the back in 2006 (Tr. 38–39). Plaintiff testified that,
after his hospitalization for the injury, during which he was paralyzed from the waist
down for two days, the injury did not bother him at first (Tr. 40). As the years went
by, however, the pain became more painful, as his doctor at the time had told him, and
now he is in constant pain (Tr. 39–40). Plaintiff acknowledged that he has not had
much medical treatment for his back but said that was because there was not much
that could be done about it (Tr. 40). He stated he has been prescribed pain pills, which
he sometimes takes and sometimes does not (id.). Plaintiff said that surgical removal
of the bullet was not a good option because there was a 50/50 chance the operation
could leave him paralyzed (id.).
Plaintiff stated that he has difficulty sitting or standing for long periods and that
his legs get numb (Tr. 38). He testified that he could probably walk one city block
without having to stop and rest (Tr. 39). He stated that he could stand for no longer
Case No.: 5:16cv138/EMT
Page 9 of 21
than 30 minutes before having to sit due to pain or discomfort, but that sitting causes
him pain which, after about 10 minutes, causes him to get up and move about (id.).
Plaintiff indicated that he sometimes gets out of breath without exerting himself,
simply by talking (Tr. 41). He stated that he took “Albuterol, Sepacor and Theofalan
[sic]” for his breathing problems as well as a nebulizer and a rescue inhaler when
necessary (Tr. 42–43). Plaintiff reported that the results of a recent breathing test
indicated that he had the lungs of an 80 year old man who had been smoking all his
life (Tr. 43).
As noted by the ALJ, on June 12, 2014, Plaintiff related an incident to his social
worker that he rode a “four wheeler” to a local dam, as he frequently did, because his
driver’s licence was suspended. He was stopped by law enforcement while driving
on a “road easement” on his way to the path that he takes to and from the dam, and
they informed him that his use of the four wheeler, evidently on the road easement,
constituted driving without a license (Tr. 383).
B.
Relevant Medical History
Plaintiff’s medical record reveals that as far back as March 31, 2006, he was
noted to have mild COPD and chronic lower back pain (Tr. 246). The impression of
V.M. Saenz, M.D., was of “old spondylosis of L5 without associated
spondylolisthesis” (id.). Also noted was evidence of Plaintiff’s gun shot injury “with
Case No.: 5:16cv138/EMT
Page 10 of 21
a bullet fragment projecting in the lower left paraspinal area at approximately the level
of T11” (Tr. 246, 252). When Plaintiff was hospitalized because of gastrointestinal
issues on August 3, 2007, among the diagnoses were asthma and emphysema (Tr. 253,
259).
Plaintiff was seen on January 14, 2012, complaining that it hurt to breathe and
that it felt like he was going to pass out (Tr. 299). COPD was suspected (Tr. 300).
For followup, Plaintiff visited the office of Ahmad Ismail, M.D., on March 26, 2012,
with complaints of “pain all over,” chronic back pain, and shortness of breath (Tr.
271). As Plaintiff asserts, Dr. Ismail’s notes appear to indicate that Plaintiff was
complaining of not having enough breath. However, Dr. Ismail did not otherwise
comment on this medical issue, and the notes from his examination indicate that
Plaintiff’s lungs were clear (id.).
Plaintiff’s diagnoses of chronic back pain,
hypertension, osteoarthritis, and COPD were also noted (id.). During an April 10,
2012, followup visit, Plaintiff indicated his shortness of breath was getting better (Tr.
270).
On April 27, 2012, Plaintiff’s chief complaint was back pain without
paraesthesia or weakness of extremities (Tr. 269).
Plaintiff presented to Gulf Coast Medical Center on May 13, 2012, complaining
of cough and fever and thought he had pneumonia, which had been recurring with him
(Tr. 287). Plaintiff was diagnosed with bronchitis with chest pain and was discharged
Case No.: 5:16cv138/EMT
Page 11 of 21
(Tr. 290). At a July 3, 2012, followup visit with Dr. Ismail, Plaintiff complained of
shortness of breath with occasional paroxysmal nocturnal dyspnea and orthopnea (Tr.
268). Dr. Ismail also noted that the range of motion in Plaintiff’s lower spine was
mildly less and that toe and heel-walking, hopping, and squatting were a little more
difficult for Plaintiff (id.). On August 2, 2012, Plaintiff complained of elbow pain
which Dr. Ismail diagnosed as osteoarthritis (Tr. 267).
Plaintiff again presented to the Gulf Coast Medical Center on November 9,
2012, with complaints of flu-type symptoms such as cough with green sputum, fever,
and left ear pain (Tr. 280). He denied shortness of breath and was noted not be in
respiratory distress or to have other respiratory symptoms besides “prolonged
expiratory phase and wheezes” (Tr. 280, 282). A chest x-ray evidenced symptoms of
COPD and re-affirmed the presence of the bullet fragment projecting to the left lower
thoracic spine (Tr. 284). Plaintiff was determined to have chronic bronchitis and was
discharged (Tr. 282). Plaintiff was next seen at the Center on December 17, 2012,
again with complaints of flu symptoms, cough, fever, headache, and myalgias; he
denied shortness of breath, pleuritic pain, wheezing, and dyspnea on exertion (Tr.
276–77).
Plaintiff saw Dr. Ismail on February 25, 2014, complaining that his lower back
pain was flaring up and would worsen after standing no more than twenty minutes (Tr.
Case No.: 5:16cv138/EMT
Page 12 of 21
352). Plaintiff was again seen on March 21, 2014, for a chest cold and then on April
16, 2014, for COPD (Tr. 350–51). Plaintiff was seen on April 22, 2104, for lower
back pain (Tr. 349) and on May 23, 2014, for symptoms of pneumonia (Tr. 348). On
June 24, 2014, Plaintiff complained of lower back pain, osteoarthritis, and stiffness
lasting a few hours in the morning (Tr. 347). Throughout the course of these
checkups, Plaintiff was prescribed Xanax and Lortab.
Plaintiff was seen at the Gulf Coast Medical Center on January 15, 2014, with
complaints about lower abdominal pain lasting for two days and vomiting with blood
(Tr. 302).
He was found to possibly have “periaortic lymphadenopathy of
indeterminate clinical significance,” directed to follow up as an outpatient with a
gastroenterologist, and released (Tr. 307). During this visit, Plaintiff reported no
shortness of breath, plueritic pain, wheezing, or dyspnea (Tr. 303). Plaintiff was also
seen at the Center on February 28, 2014, complaining about increased shortness of
breath and congestion (Tr. 370) and on May 7, 2014, for shortness of breath and
cough with wheezing and dyspnea on exertion (Tr. 364). He was seen on June 10,
2014, after an incident where he hit his head while entering a vehicle, causing neck
and shoulder pain; he denied back pain at that time (Tr. 359). Plaintiff also denied
shortness of breath, dyspnea, or dyspnea on exertion, and on examination he was
Case No.: 5:16cv138/EMT
Page 13 of 21
found to have wheezes but no respiratory distress and no chest tenderness (Tr. 21,
359–63).
As is relevant to Plaintiff’s COPD, a spirometry test for pulmonary function
was conducted on February 25, 2014, but Plaintiff was not able to perform the test
correctly due to coughing and shortness of breath (Tr. 390). A second test was
performed on September 26, 2014, nearly three months after the date Plaintiff was last
insured for DIB purposes. The test provided results indicating an FEV1 value of 0.84
and an FVC value of 1.33, less than the corresponding values in the Listings (i.e., 1.85
and 2.30, respectively). See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.02.3
V.
DISCUSSION
Plaintiff contends the ALJ erred by failing to include Plaintiff’s back problems,
as caused by his gunshot wound, among the medically determinable severe
impairments that the ALJ identified in step two of the analysis. As Defendant points
out, however, during step two the proper determination is simply whether a claimant
3
See also 20 C.F.R. Part 404, Subpart P, Appendix 1, § 300 (“Spirometry, which measures
how well you move air into and out of your lungs, involves at least three forced expiratory
maneuvers during the same test session. A forced expiratory maneuver is a maximum inhalation
followed by a forced maximum exhalation, and measures exhaled volumes of air over time. The
volume of air you exhale in the first second of the forced expiratory maneuver is the FEV1. The total
volume of air that you exhale during the entire forced expiratory maneuver is the FVC.”)
Case No.: 5:16cv138/EMT
Page 14 of 21
has a condition that qualifies as a severe impairment. As stated by the Eleventh
Circuit:
This step acts as a filter; if no severe impairment is shown the claim is
denied, but the finding of any severe impairment, whether or not it
qualifies as a disability and whether or not it results from a single severe
impairment or a combination of impairments that together qualify as
severe, is enough to satisfy the requirement of step two. See, e.g., Brady
v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also Cantrell v.
Bowen, 804 F.2d 1571, 1573 (11th Cir. 1986); McDaniel [v. Bowen],
800 F.2d [1026,] 1031 [(11th Cir. 1986)].
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (emphases added).
Thus, all that was required at step two was for the ALJ to find that Plaintiff had
a severe impairment; the ALJ did not need to identify any particular impairment or
enumerate all the impairments that are found to be severe. Tuggerson-Brown v.
Comm’r of Soc. Sec., 572 F. App’x 949, 951–52 (11th Cir. 2014); Heatly v. Comm’r
of Soc. Sec., 382 F. App’x 823, 824–25 (11th Cir. 2010). So long as an ALJ provides
that he has taken all of a claimant’s impairments into consideration when determining
his capacity to work at steps three and beyond, any omission during step two is of no
consequence. Tuggerson-Brown, 572 F. App’x at 951–52; Perry v. Astrue, 280 F.
App’x 887, 893–94 (11th Cir. 2008).
Case No.: 5:16cv138/EMT
Page 15 of 21
Here, the ALJ stated that he considered all of Plaintiff’s symptoms in
determining his RFC (i.e., a restriction to light work with additional limitations) (Tr.
20–21). Moreover, the ALJ addressed Plaintiff’s gunshot wound and back issues:
The undersigned finds that the claimant’s impairment of status-post
gunshot wound to the back in the remote past was a non-severe
impairment because the medical and other evidence established only a
slight abnormality that would have had no more than a minimal effect on
the claimant’s ability to perform basic work activities. The longitudinal
medical record shows that the claimant has a history of a gunshot wound
to his back in 1996 with an intact bullet. However, the evidence of
record shows that the claimant was able to work at substantial gainful
activity levels after sustaining this gunshot wound. In addition, treatment
notes of Ahmad Ismail, M.D., dated March 26, 2012, indicate that the
claimant had full range of motion and records from Gulf Coast Medical
Center, dated December 17, 2012, show that the claimant had
independent ambulatory status. Furthermore, there is little, if any,
treatment for the claimant’s back since his alleged onset date of
disability. Moreover, records from Life Management, dated June 12,
2014, show that the claimant reported that he rode a four wheeler to a
dam frequently. On June 12, 2014, the clamant reported that he rode his
four-wheeler to the dam and was watching people fish, but got a ticket
for driving while suspended when he was leaving.
(Tr. 18) (citations to record omitted).
Accordingly, the court finds that Plaintiff’s back pain and the gunshot wound
from which it originated were adequately considered by the ALJ and in any event
need not have been included among the identified severe impairments during step two
of the analysis.
Case No.: 5:16cv138/EMT
Page 16 of 21
Next, Plaintiff asserts—without discussion—that the ALJ should have found
the osteoarthritis in his elbow to be a severe impairment. Dr. Ismail diagnosed
osteoarthritis of the elbow. As with Plaintiff’s similar claim regarding the gunshot
wound in his back, at step two in the analysis it is only required that the ALJ find that
Plaintiff has a severe impairment, and it is not required that the ALJ identify all severe
impairments or any particular impairment.
Furthermore, Plaintiff’s argument, sparse as it is, states only the fact of the
diagnosis and points to no parts of the record where Plaintiff’s osteoarthritis caused
him to have demonstrable limitations that the ALJ should have recognized. As
Defendant points out, and as summarized above, Dr. Ismail diagnosed Plaintiff with
osteoarthritis of the elbow, but he never indicated any specific limitations attributable
to this condition (Tr. 272–75, 352). Diagnoses alone are insufficient to establish a
severe impairment. Rather, 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); see also Russell v. Astrue, 331 F. App’x 678, 681 (11th
Cir. 2009) (rejecting claim where plaintiff asserted that her high blood pressure caused
her to be disabled but failed to point to any documentation in her medical records
demonstrating how it might so cause disability); Moore v. Barnhart, 405 F.3d 1208,
Case No.: 5:16cv138/EMT
Page 17 of 21
1213 n.6 (11th Cir. 2005) (holding that “To a large extent, [the plaintiff] questions the
ALJ’s RFC determination based solely on the fact that she has varus leg instability
and shoulder separation. However, the mere existence of these impairments does not
reveal the extent to which they limit her ability to work or undermine the ALJ’s
determination in that regard.”) (citation omitted).
Plaintiff next contends that the ALJ erred by not finding that Plaintiff, on
account of his COPD, met or equaled the criteria for Listing 3.02 such that he should
have been presumed disabled under step three without further inquiry. See 20 C.F.R.
pt. 404, subpt. P, app. 1, § 3.02 (Listing 3.02). As provided by the Eleventh Circuit:
The Listing of Impairments describes, for each of the major body
systems, impairments which are considered severe enough to prevent a
person from doing any gainful activity. See 20 C.F.R. § 404.1525(a).
Part A of the Listing of Impairments contains medical criteria that apply
to adults age 18 and over. See 20 C.F.R. § 404.1525(b); see also 20
C.F.R. § 404, Subpt. P, App. 1.
To “meet” a Listing, a claimant must have a diagnosis included in
the Listings and must provide medical reports documenting that the
conditions meet the specific criteria of the Listings and the duration
requirement. See 20 C.F.R. § 404.1525(a)–(d). To “equal” a Listing, the
medical findings must be “at least equal in severity and duration to the
listed findings.” See 20 C.F.R. § 404.1526(a). If a claimant has more
than one impairment, and none meets or equals a listed impairment, the
Commissioner reviews the impairments’ symptoms, signs, and
laboratory findings to determine whether the combination is medically
equal to any listed impairment. See id.
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (footnote omitted). As with
the severity determination at step two, a diagnosis alone is insufficient to establish that
Case No.: 5:16cv138/EMT
Page 18 of 21
a Listing is met at step three. Gibbs v. Comm’r of Soc. Sec., 686 F. App’x 799, 800
(11th Cir. 2017) (citing 20 C.F.R. § 416.925(d)). “For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
In attempting to show that he meets § 3.02 of the Listings, Plaintiff points to the
results obtained on the spirometry test performed on September 26, 2014. As noted
earlier, however, and as recognized by the ALJ, this test was administered almost
three months after Plaintiff’s last day of insured status for DIB purposes, June 30,
2014 (Tr. 388, 18). Disability must be proven to have existed at the time that the
claimant is insured under the requirements of the Act. McLain v. Comm’r, Soc. Sec.
Admin., 676 F. App’x 935, 937 (11th Cir. 2017) (citing Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005)); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.
1979); Douglas v. Comm’r of Soc. Sec., 486 F. App’x 72, 75 (11th Cir. 2012). If it
is shown that the claimant became disabled after the date he was last insured, the
claim must be denied despite the development of this disability. McLain, 676 F.
App’x at 937; Demandre, 591 F.2d at 1090; Douglas, 486 F. App’x at 75.
Additionally, the ALJ fully surveyed the medical notes in the record pertaining
to Plaintiff’s COPD, and as Defendant points out, during June 2014, the month in
Case No.: 5:16cv138/EMT
Page 19 of 21
which Plaintiff’s insured status would end, he was admitted to the Gulf Coast Medical
Center after hitting his head, but denied any shortness of breath, pleuritic pain, or
dyspnea at that time and was found to have some wheezes in his lungs but no
respiratory distress or chest tenderness (Tr. 359–63). Likewise, treatment notes from
Dr. Ismail ranging from February to June of 2014 indicate that he consistently found
Plaintiff’s breath sounds to be clear (Tr. 347–52). The ALJ thus found that “[t]he
claimant’s limitations have been accounted for in the residual functional capacity
assessment and none of the claimant’s doctors have opined that the claimant’s COPD
would be more limiting than what is accounted for in the residual functional capacity
assessment” (Tr. 21). The court concurs and finds that Plaintiff failed to show that his
COPD rose to the level of disabling severity so as to meet the criteria of the Listing
during the relevant time.
Last, Plaintiff argues that the ALJ failed to use the correct hypothetical question
to the Vocational Expert (“VE”) in his decision. Plaintiff asserts that the ALJ should
have incorporated the third hypothetical question that he posed to the VE into his
opinion instead of the second one. A hypothetical question must comprehensively
describe a claimant’s condition, and VE testimony that does not accurately address
that condition cannot be considered substantial record evidence. Pendley v. Heckler,
Case No.: 5:16cv138/EMT
Page 20 of 21
767 F.2d 1561, 1563 (11th Cir. 1985). Beyond that, however, the ALJ is not required
to include findings in the hypothetical that he has properly rejected as unsupported.
See McSwain v. Bowen, 814 F.2d 617, 620 n.2 (11th Cir. 1987). In the instant case,
the ALJ asked the VE to consider a hypothetical individual
with limitations consistent with his RFC assessment (Tr. 20, 45–46). The VE
answered that the individual would be able to perform jobs as a vegetable sorter, ticket
taker, and house sitter, all with significant numbers of available jobs in Florida and the
United States.
Plaintiff’s argument, largely vague, appears to be a roundabout way of
challenging the ALJ’s RFC assessment without actually doing so. The court finds the
ALJ’s RFC determination to be supported by substantial medical and opinion
evidence as referenced in his decision.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is supported by
substantial evidence and should not be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F.
3d at 1439; Foote, 67 F.3d at1560. Furthermore, Plaintiff has failed to show that the
ALJ applied improper legal standards, erred in making his findings, or that any other
ground for reversal exists.
Case No.: 5:16cv138/EMT
Page 21 of 21
Accordingly, it is ORDERED:
1.
Nancy A. Berryhill is substituted for Carolyn W. Colvin as Defendant in
this action.
2.
The decision of the Commissioner is AFFIRMED, this action is
DISMISSED, and the clerk is directed to close the file.
At Pensacola, Florida this 25th day of September 2017.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 5:16cv138/EMT
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?