ROGERS v. COLVIN

Filing 12

ORDER re 1 Complaint filed by GWENDOLYN VERONICA ROGERS. The decision of the Social Security Commissioner is affirmed. Ordered by US Magistrate Judge STEPHEN HYLES on 11-24-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
GWENDOLYN VERONICA ROGERS, :
:
Plaintiff,
:
:
v.
:
:
CAROLYN COLVIN,
:
Commissioner of Social Security,
:
:
Defendant.
:

CASE NO. 4:13-CV-532-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 benefits,
finding that she was 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
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that he/she suffers from an
1

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).

2

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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impairment that prevents him/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
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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ISSUE
Whether the ALJ erred in failing to find that Plaintiff had severe impairments of
depressive disorder and personality disorder.
Administrative Proceedings
Plaintiff applied for disability insurance benefits on July 12, 2010, (Tr. 63, ECF
No. 9-2) alleging disability as of May 1, 2009. (Id.) Plaintiff’s application was denied
initially and on reconsideration, and Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”). The ALJ conducted a video hearing on May 4,
2012. (Id.) Following the hearing, the ALJ issued an unfavorable decision on August 1,
2012.

(Tr. 63-71.)

The Appeals Council ultimately denied Plaintiff’s Request for

Review on October 25, 2013. (Tr. 1-4.) This appeal followed.
Statement of Facts and Evidence
After consideration of the written evidence and the hearing testimony in this case,
the ALJ determined that Plaintiff met the insured status requirement of the Social
Security Act through December 31, 2011. (Tr. 65.) He further found that Plaintiff had
not engaged in substantial gainful activity as defined by the Act since her alleged onset
date. (Id.) The ALJ found that Plaintiff had the severe impairments of obesity and iron
deficiency anemia. (Id.) As for Plaintiff’s other complaints and alleged diagnoses, the
ALJ found that the medical evidence did not support a finding that any of these alleged
impairments qualified as severe. (Id.) The ALJ then determined that Plaintiff had no
impairments that met or medically equaled any one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Tr. 67.)
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After consideration of the entire record, the ALJ found that Plaintiff retained the
residual functional capacity (RFC) to perform light work “except she can occasionally
stair climb, but cannot kneel, crawl, climb ladders or scaffolds, work at heights, or with
hazardous machinery.” (Tr. 67.) The ALJ concluded that Plaintiff had past relevant
work as a Sorter/Hanger, and was capable of performing that work. (Tr. 70.) The ALJ
therefore found that Plaintiff had not been under a disability as defined in the Act from
May 1, 2009 through December 31, 2011, the date last insured. (Id.)
DISCUSSION
Did the ALJ err in finding that Plaintiff’s alleged impairments of depressive
disorder and personality disorder were not “severe”?
The sole contention by Plaintiff is that the ALJ erred by failing to find her
depressive disorder and personality disorder to be severe impairments. The
Commissioner responds that the ALJ properly considered the medical evidence related to
Plaintiff’s nonexertional impairments and correctly concluded that the evidence did not
establish that her depressive and personality disorders are severe.
At the time of the hearing before the ALJ Plaintiff was fifty-one years of age. She
has a high school education and has past relevant work as a certified nursing assistant,
bus driver and hanger/sorter. (Tr. 167-172.) The ALJ found that the medical evidence of
record established that Plaintiff has severe impairments of obesity and iron deficiency
anemia. (Tr. 65.) Although the ALJ found her to also have depressive and personality
disorders, these were not determined to be severe. (Tr. 66-67.) The ALJ analyzed the
effects of the medically determinable nonexertional impairments under paragraph B
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criteria and in the mental function analysis found Plaintiff to have no more than “mild”
limitations in activities of daily living, maintaining social functioning and maintaining
concentration, persistence, and pace. No episodes of decompensation were found.
Therefore, the ALJ found that Plaintiff’s depressive and personality disorders cause no
more than minimal limitations in her ability to carry out the basic mental demands of
work and are nonsevere. 20 C.F.R. 404.1520a(d)(1); Tr. 65, 66.
In her brief, Plaintiff initially directs much of her argument to what she contends is
an erroneous determination by the ALJ that her mental impairments are not severe. (Pl.’s
Br. 5-8.) This is a step 2 analysis. She then dismisses her discussion of the step 2
analysis as merely “academic” and frames her argument instead as an assertion of error
by the ALJ in the formulation of her residual functional capacity (RFC) to work.3
Impairments are characterized by an ALJ as “severe” or “non-severe” based on
whether the medical evidence of record proves that the impairment causes significant
limitations in a claimant’s ability to carry out basic work activities.

Freeman v.

Barnhart, 220 F. App’x 957, 961 (11th Cir. 2007). An ALJ makes this determination at
step 2 of the sequential analysis, and here the ALJ found Plaintiff’s asserted depressive
and personality disorders do not cause more than minimal limitations in her ability to
work. (Tr. 66.) The ALJ thoroughly addressed the medical evidence in reaching the
conclusion that Plaintiff’s nonexertional limitations are not severe, including assigning
specific weight to the medical source opinions which addressed the issue.

3

The RFC is formulated by the ALJ between steps 3 and 4 of the sequential evaluation
process, 20 C.F.R. 404.1520(e), and not, as Plaintiff contends in her brief, between steps 4 and 5.
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No evidence exists in Plaintiff’s record of care that establishes that her mental
impairments result in long term functional limitations which reduce or eliminate her
ability to perform the requirements of work. Gray v. Comm’r of Soc. Sec., 426 F. App’x
751 (11th Cir. 2011); Osborn v. Barnhart, 194 F. App’x 654, 664 (11th Cir. 2006). The
ALJ found that Plaintiff does not receive regular psychiatric treatment, although she
noted Plaintiff was prescribed Prozac by her primary care provider based on a diagnosis
of menopause.

(Tr. 66.)

In a September 2010 consultative examination by a

psychologist, Plaintiff was found by the examiner to be purposefully inattentive and
unwilling to cooperate in the evaluation. (Ex. 5F, Tr. 313-6.) The psychologist opined
that her depressed state manifested as no more than annoyed with lack of motivation to
engage in work demands.

(Tr. 315-6.)

Two state agency reviewing physicians in

September 2010 and February 2011 found insufficient record evidence to establish any
mental impairment that would affect Plaintiff’s work abilities. (Tr. 69; Ex.6F, 9F.) Her
minimal treatment and the medical source opinions finding her asserted mental
impairments to be either nonexistent, feigned, or nonsevere are unrebutted by Plaintiff
and constitute substantial evidence to support the ALJ’s decision to not categorize them
as severe impairments. Larry v. Comm’r of Soc. Sec., 506 F. App’x 967, 970 (11th Cir.
2013). No error is found.

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CONCLUSION
WHEREFORE, for the foregoing reasons, it is ORDERED that the determination
of the Social Security Commissioner is AFFIRMED.
SO ORDERED, this 24th day of November, 2014.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

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