HARRIS v. COLVIN

Filing 14

ORDER remanding the case for further administrative proceedings. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 10-2-17. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BENNY HARRIS, JR.
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:16-CV-00159-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits and supplemental security income, finding that he is not disabled within the
meaning of the Social Security Act and Regulations.

Plaintiff contends that the

Commissioner’s decision was in error and seeks review under the relevant provisions of
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All administrative remedies have been
exhausted. Both parties filed their written consents for all proceedings to be conducted
by the United States Magistrate Judge, including the entry of a final judgment directly
appealable to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards

were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).
“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner. 1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the

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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).

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unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). 2 A Plaintiff
seeking Social Security disability benefits must demonstrate that she suffers from an
impairment that prevents her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”). Id.

Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.

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effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.
ADMINISTRATIVE PROCEEDINGS
Plaintiff Benny J. Harris filed applications for disability insurance benefits and
supplemental security income on April 10, 2013, alleging that he became disabled to
work on December 8, 2011. His claims were denied initially on October 15, 2013, and
again after reconsideration on February 10, 2014. On March 6, 2014, he made a timely
request for an evidentiary hearing before an administrative law judge (ALJ) as provided
for in 20 C.F.R. §§ 404.929 et seq and 416.1429 et seq. The hearing was conducted on
March 16, 2015. Plaintiff appeared with counsel and gave testimony as did an impartial
vocational expert (VE). Tr. 14. The ALJ issued an unfavorable decision on April 22,
2015, denying his claims. Tr. 11-30. Plaintiff sought review by the Appeals Council but
was denied on September 26, 2016. (Tr. 8-10, 1-7).

Plaintiff has exhausted the

administrative remedies available to him under the Social Security Act and now seeks
judicial review of the Commissioner’s final decision to deny his applications for benefits.
This case is ripe for judicial review.
STATEMENT OF FACTS AND EVIDENCE
Plaintiff alleges he became disabled when he was forty-seven years old.

He

completed high school and has past relevant work as a cashier and fast food worker. Tr.
201, 206-11. In his applications he claimed that back pain, schizophrenia, and major
depression are the causes of his disability. Tr. 38-59, 200. The ALJ conducted the five4

step sequential analysis of disability claims set out in the Commissioner’s regulations. At
step two, he found that Plaintiff has “severe” impairments of lumbar degenerative disc
disease, hypertension, unstable angina, depression, anxiety, and history of marijuana
abuse. Finding No. 3; Tr.16. At step three, he established that Plaintiff’s impairments,
considered alone and in combination with one another, neither match nor medically equal
any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding No. 4; Tr.
16-18. Between steps three and four, the ALJ formulated a residual functional capacity
(RFC) assessment which allows Plaintiff to perform light work with both exertional and
non-exertional restrictions. Finding No. 5, Tr. 18-24. In his step-four analysis, the ALJ
found that this restricted RFC assessment prevents Plaintiff from returning to any of his
past relevant work. Finding No. 6; Tr. 24-25. After eliciting testimony from an impartial
VE, the ALJ found, at step five, that Plaintiff has jobs available to him that he can
perform despite his impairments.

The ALJ therefore found Plaintiff not disabled.

Finding Nos. 10 and 11; Tr. 25-26.
DISCUSSION
Although framed in a convoluted manner, Plaintiff raises a number of issues in this
action. His first assertion groups sundry errors of mischaracterization of evidence, side
effects of medication, incomplete hypothetical questions to the VE and improper
consideration of subjective complaints. Next, he further clusters failure to give proper
weight to a psychiatrist’s opinion, presumptive disability at step three, and error by the
Appeals Council. Third, Plaintiff claims that the ALJ found him to have the severe
impairment of marijuana abuse despite a complete dearth of evidence to prove it, and
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despite his repeated denials of use of illegal substances when routinely asked by health
care providers at clinical presentations. Plaintiff contends that this unsupported finding
shows ALJ bias. Only this third error has merit, although not in the exact manner he
raises it.
An ALJ has a duty to develop a record that considers all medical evidence and to
explain the weight he assigns to that evidence. This must be done in a manner that
permits a court to conduct meaningful judicial review of the final decision by the
Commissioner. Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1265 (11th Cir. 2015). The
ALJ’s decision here has an evidentiary gap that prevents a full, fair and impartial
assessment of Plaintiff’s claims on the evidence as a whole and is “unfair and clearly
prejudicial.” Id. at 1270. Remand is therefore required in order for the Commissioner to
meet her duty to investigate all relevant facts and issue a decision that is based on
evidence, substantial evidence, and nothing more. On remand, the ALJ shall develop a
full and fair record. Todd v. Heckler, 736 F.2d 641, 642 (11th Cir. 1984). He must do so
by filling the evidentiary gap that exists in the present record of his step-two analysis of
the severe impairment of marijuana abuse or by proceeding through the sequential
analysis while excluding that “impairment.”

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CONCLUSION
For the reasons stated above, the action is remanded for further administrative
proceedings in accordance with the instructions herein.
SO ORDERED, this 2nd day of October, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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