JARRELLS v. BERRYHILL

Filing 20

ORDER affirming the decision of the Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5-3-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SYLVESTER JARRELLS,

:
:
Plaintiff,
:
:
v.
:
:
NANCY A BERRYHILL,
:
Acting Commissioner of Social Security, :
:
Defendant.
:

CASE NO. 3:17-CV-75-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 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 he is unable to perform his
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 unrealistic.
Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). 2 A Plaintiff seeking Social

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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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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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Security disability benefits must demonstrate that he suffers from an impairment that
prevents him 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 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.
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ADMINISTRATIVE PROCEEDINGS
Plaintiff Sylvester Jarrells filed an application for Supplemental Security Income on
October 29, 2013, alleging that he became disabled to work on November 1, 2010. Plaintiff
filed that application only two months after a previous application of his was denied by an
ALJ on August 28, 2013, following an evidentiary hearing. Tr. 24. Under 20 C.F.R. §§
404.957(c)(1) and 416.1457(c)(1), consideration of subsequent claims of disability are
limited to the period after a prior adjudication. Therefore, the earliest date on which
Plaintiff could again claim disability to work is August 29, 2013.
Plaintiff’s new claim was denied initially on December 6, 2013, and after
reconsideration on February 28, 2014. Tr. 24. On March 21, 2014, Plaintiff requested an
evidentiary hearing before an ALJ in writing. Id. The resulting hearing began on October
23, 2015, but was continued in order to obtain an orthopedic consultative examination
which was done on December 2, 2015. Id. The hearing resumed on March 18, 2016. Id.
Plaintiff appeared with an attorney and testified both times, as did impartial vocational
experts (“VEs”). Id. The ALJ issued an unfavorable decision on April 7, 2016. Tr. 2139. Plaintiff next sought review by the Appeals Council on April 18, 2016, but was denied
on March 1, 2017. Tr. 19-20, 1-6. Having exhausted the administrative remedies available
to him under the Social Security Act, Plaintiff seeks judicial review of the Commissioner’s
final decision denying his application for benefits.
STATEMENT OF FACTS AND EVIDENCE
On the date he filed his application Plaintiff was forty-two years old and classified
as a “younger individual.” Tr. 32; see 20 C.F.R. § 416.963; see also 20 C.F.R. Part 404,
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Subpart P, Appendix 2. He has a high school education and past relevant work as a grass
cutter and material handler. Tr. 32. In conducting the required five-step sequential analysis
of Plaintiff’s claim, the ALJ found at step two that Plaintiff has the severe impairments of
post displaced fibula fracture and lumbar degenerative disc disease. Finding 2, Tr. 27; 20
C.F.R. § 416.920(c). At step three, the ALJ determined that these impairments, considered
both alone and in combination with one another, neither met nor medically equaled a listed
impairment set out in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding 3, Tr. 27.
Between steps three and four he formulated a residual functional capacity assessment
(“RFC”) which permits Plaintiff to engage in sedentary work with added exertional
limitations. Finding 4, Tr. 27-32. At step four, the ALJ found that this restricted RFC
prevents Plaintiff from resuming his past relevant work. Finding 5, Tr. 32. At step five,
the ALJ developed testimony from the VE that Plaintiff retained the ability to work as a
call out operator, charge account clerk, or dispatcher and that these jobs were available to
him in significant numbers in the national economy. Finding 9, Tr. 33. The ALJ therefore
found him to be not disabled to work. Finding 10, Tr. 34.
DISCUSSION
I.

The ALJ’s assessment of a treating physician’s opinion
Plaintiff contends the ALJ erred by according inadequate weight to the opinions of

a treating physician, John Bieltz, D.O. Pl.’s Br. 10. Plaintiff alleged that he is unable to
work as a result of back pain and a slipped disc. Tr. 28. Dr. Bieltz treated him for these
maladies. Tr. 30. The ALJ first noted that over two years elapsed between when Dr. Bieltz
saw Plaintiff in August 2011 and his next visit in October 2013. Id. The ALJ reviewed
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Dr. Bieltz’s records of treatment including a statement the doctor provided on October 13,
2013, a RFC questionnaire dated December 24, 2013, and a statement of August 13, 2014..
Tr. 30-31. Dr. Bieltz said that Plaintiff could not work an eight-hour day for five days a
week and would likely be absent from work more than four times a month. Tr. 30. The
ALJ gave these statements only “limited weight.” Id. He found them unsupported by the
medical evidence of record and Dr. Bieltz’s clinical notes. Id. The ALJ also pointed out
that Dr. Bieltz treated Plaintiff after a motor vehicle accident on December 26, 2014, and
performed a surgical procedure to repair a displaced fibular fracture. Tr. 31. Afterwards,
Dr. Bieltz recommended daily walking and increased physical activity. Tr. 31, Ex. C10F/3.
The ALJ considered Dr. Bieltz’s directive contradictory to the doctor’s earlier conclusions
which limited Plaintiff’s work-related tolerances. Tr. 30-31.
The ALJ found that a consultative examination on December 2, 2015 by Andre
Haynes, M.D. stated more realistic and credible limitations than those stated by Dr. Bieltz.
Compare Tr. 32 (noting that Dr. Haynes’ assessment of Plaintiff’s functional limitations
were “largely consistent” with the medical evidence of record), with Tr. 30-31 (explaining
why Dr. Bieltz’s analysis received “limited weight”). Dr. Haynes said Plaintiff retained
the functional capacity to sit, stand, or walk for thirty minutes at a time and could sit a total
of six hours and stand or walk for two hours in an eight-hour day. Tr. 31. Dr. Haynes also
stated Plaintiff would need an assistive device for walking more than fifty feet and the ALJ
included the use of an assistive device to ambulate to and from workstations. Tr. 31-32;
Finding 4, Tr. 27.

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It is the function of the Commissioner to weigh the evidence and resolve conflicts
in the evidence, not the courts. Courts are prohibited from deciding facts anew, making
credibility findings, or re-weighing evidence. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005). When the ALJ discusses the statements at issue, assigns specific weight,
and explains his reasons for doing so, the decision must be affirmed if it is supported by
substantial evidence, even if the evidence as a whole might preponderate against the factual
findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Fries v. Comm’r of
Soc. Sec., 196 F. App’x 827, 833 (11th Cir. 2006). Here, the ALJ did not err in his
consideration of the medical evidence provided by Dr. Bieltz and Plaintiff’s first contention
of error has no merit.
II.

The ALJ’s omission of alleged limitations
In his second assertion of error Plaintiff contends that the ALJ posed incomplete

hypotheticals questions to the VE. Pl.’s Br. 2, 18-19. Specifically, he states that the
opinions of Dr. Bieltz require that he have a sit/stand option at will and that he be permitted
to elevate his leg to heart level for twenty percent of the work day. Plaintiff argues “the
ALJ committed harmful error by failing to include one or both of these limitations into his
RFC.” Id. at 19. However, nowhere in the record of his treatment of Plaintiff does Dr.
Bieltz impose these specific limitations.

The ALJ gave only limited weight to the

limitations Dr. Bieltz did express and, crucially, formulated an RFC which permits Plaintiff
to use his cane or other assistive device to ambulate to and from the work station. He also
limited Plaintiff to sedentary work with only occasional balancing, stooping, or kneeling
and occasional climbing of ramps and stairs with no climbing of ladders or scaffolds.
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Finding 4, Tr. 27. The ALJ is not required to include every restriction listed by a medical
source to whom he gives limited weight. His finding that Plaintiff is limited to sedentary
work with no more than occasional postural or exertional effort and the allowed use of a
cane adequately accounts for the restrictions he accepted as consistent with objective
medical evidence. Stone v. Comm’r of Soc. Sec., 544 Fed. App’x 839 (11th Cir. 2013); see
20 C.F.R. § 416.929; see also SSR 96-4p, 1996 WL 374187 (July 2, 1996). Therefore,
Plaintiff’s second claim of error also lacks merit.
III.

Credibility determination
Finally, Plaintiff’s asserts that the ALJ’s credibility determination is not supported

by substantial evidence. Pl.’s Br. 2, 19-21. He relies on the medical evidence provided by
Dr. Bieltz to support this contention. However, the ALJ had good cause to give Dr. Bieltz’s
findings only limited weight.

He gave an adequate explanation for his credibility

determination and clearly considered the whole record in concluding that Plaintiff retains
the residual functional capacity to engage in a restricted range of sedentary work. Plaintiff
references medical evidence from as early as 2011, but Plaintiff was found to be not
disabled in a previous ALJ’s decision rendered August 28, 2013. That decision is final and
binding through that date. Thus, the relevant time period in this application is August 29,
2013, through April 7, 2016—the date the ALJ issued his written decision on this
application for benefits. Plaintiff has not proven that he is disabled to work and his third
assertion of error is meritless.

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CONCLUSION
The Court finds that none of Plaintiff’s assertions of error are meritorious.
Accordingly, the Commissioner’s decision is affirmed.
SO ORDERED, this 3rd day of May, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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