McCullough v. BERRYHILL

Filing 12

ORDER affirming the Commissioner's decision. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 8-10-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HOPE MCCULLOUGH,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 4:17-CV-171-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law Judge’s
(“ALJ’s”) determination, denied Plaintiff’s applications for disability insurance benefits
finding that she 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 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 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 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 Hope McCullough filed an application for disability insurance benefits on
August 13, 2015, alleging that she became disabled to work on June 30, 2014. Her claim
was denied initially on March 11, 2016, and on reconsideration on May 26, 2016. She
made a timely request for an evidentiary hearing before an ALJ and a hearing was held on
October 28, 2016. Plaintiff appeared with her attorney and testified, as did an impartial
vocational expert. Tr. 10. On March 3, 2017, the ALJ issued a decision denying Plaintiff’s
claim for benefits. Tr. 7-25. Plaintiff sought review from the Appeals Council on May 11,
2017, but was denied on June 15, 2017.

Tr. 26-30, 1-6. Having exhausted the

administrative remedies available to her under the Social Security Act, Plaintiff seeks
judicial review of the Commissioner’s final decision denying her claim for benefits.
STATEMENT OF FACTS AND EVIDENCE
When the ALJ rendered his written decision, Plaintiff was forty-five years of age
and classified under the Commissioner’s regulations as a “younger individual.” 20 C.F.R.
§ 404.1563. She has a high school education and past relevant work as a human resources
advisor. In her application for disability benefits, Plaintiff alleged that she is unable to
work due to post-traumatic stress disorder (“PTSD”), brain injury migraines, and back
problems. Tr. 199. The ALJ conducted the five-step sequential analysis of Plaintiff’s claim
and found at step two that she has “severe” impairments of PTSD, major depressive
disorder, panic disorder, and substance abuse disorder. Finding No. 3, Tr. 13. Notably,
these are virtually identical to the service connected disabilities found by the United States
Department of Veteran’s Affairs (“DVA”) Disability Evaluation System on July 1, 2015,
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when the DVA found Plaintiff one-hundred percent disabled from further military service.
Tr. 245.
At step three, the ALJ determined that these impairments, considered both alone and
in combination with one another neither meet nor medically equal a listed impairment set
forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding No. 4, Tr. 13-15. Between
steps three and four, the ALJ formulated a residual functional capacity assessment (“RFC”)
which permits Plaintiff to perform the full range of work at all exertional levels but with
non-exertional restrictions to simple, routine and repetitive tasks, and off-task fifteen
percent of the work day and absent at least twice monthly. Finding No. 5, Tr. 15-16. This
RFC was found to disable Plaintiff from her past relevant work and from any other jobs
available to her in the national economy. Finding Nos. 6, 10, Tr. 16-17.
Because Plaintiff’s substance abuse disorder is a contributing factor material to the
determination of disability, she is precluded by law from an award of benefits. Tr. 12, 42;
U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535. However, a claimant may receive benefits
if she proves that she would still be disabled without her drug and alcohol abuse. Doughty
v. Apfel, 245 F.3d 1274, 1275-76, 1280, 1281 (11th Cir. 2001). Accordingly, the ALJ
evaluated Plaintiff’s claim further under the assumption that she had discontinued drug and
alcohol abuse, rendering substance abuse disorder no longer a severe impairment. Finding
Nos. 11, 12, Tr. 17-20. The ALJ found that if Plaintiff stopped her drug and alcohol abuse,
she would be able to resume her past relevant work as a human resources advisor or
perform other jobs available to her in the national economy. Finding No. 13, Tr. 20-21.
Thus, the ALJ found Plaintiff to be not disabled to work. Finding No. 14, Tr. 22.
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DISCUSSION
Plaintiff first contends that the ALJ erred as a matter of law by not assigning great
weight to the disability determination made by the DVA. Pl.’s Br. 4, ECF No. 9. The ALJ
found as severe impairments the same impairments listed by the DVA in its Disability
Evaluation System determination.

Finding No. 3, Tr. 13, 245. Because one of the

impairments found in both the ALJ’s and DVA’s findings is substance abuse and the ALJ
found substance abuse to be a material factor in the disability determination, Plaintiff is
precluded by law from an award of benefits. Pearson v. Astrue, 271 F. App’x 979 (11th
Cir. 2008). The ALJ relied on the DVA records in his step-two findings and discussed
them at length in formulating Plaintiff’s RFC, thereby implicitly affording them the great
weight to which they are entitled. Adams v. Comm’r of Soc. Sec., 542 F. App’x 854 (11th
Cir. 2013). Plaintiff’s first assertion of error is meritless.
Next, Plaintiff contends that the ALJ erred in his step-two evaluation of her claim by
not finding her neck, back and shoulder pain to be severe impairments. Pl.’s Br. 6. The
ALJ discussed these maladies at length, with specific reference to DVA records, in his steptwo findings. Tr. 13. Further, in the formulation of Plaintiff’s RFC between steps three
and four, the ALJ specifically assigned “great weight” to the opinions of a physician who
reviewed Plaintiff’s medical records as part of the Disability Determination Services
findings and noted that the physician found that the records did not support a conclusion
that Plaintiff’s alleged physical impairments are severe. Tr. 16.
The Eleventh Circuit has held that where the ALJ discusses the objective evidence
of an alleged impairment in later stages of the evaluation, the failure to find an impairment
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“severe” at step two is harmless. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 853 (11th
Cir. 2013). When the ALJ finds in a claimant’s favor by determining that there is at least
one severe impairment and thus continues to subsequent steps, there is no per se
requirement to identify all additional impairments at step two. Tuggerson-Brown v.
Comm’r of Soc. Sec., 572 F. App’x 949 (11th Cir. 2014). The ALJ must consider all the
medical evidence and alleged symptoms in assessing the RFC. Id. at 951-52.
Here, the ALJ specifically stated that he considered all medical evidence of record,
both in the RFC formulation and at step five, where he found that Plaintiff’s impairments,
including drug and alcohol abuse, preclude her from performing any jobs available to her
in the national economy. Plaintiff does not contest the ALJ’s finding that her polysubstance
abuse disorder is a material factor in his step-five finding that she cannot work. Because
the ALJ found severe impairments at step two and considered and discussed all medical
evidence at later steps, there is no error in the ALJ’s step-two analysis of Plaintiff’s claim.
Plaintiff’s third and final assertion of error is that “the ALJ failed to properly
consider the side effects of [her] prescribed medications on her ability to work.” Pl.’s Br.
9. In formulating her RFC, the ALJ specifically noted that Plaintiff complained of dry
mouth, grogginess, sleep disruption, drowsiness, dizziness, nausea, constipation, and
blurred vision allegedly caused by her medications. Tr. 15. But, the ALJ also found that
these side effects occurred while Plaintiff was abusing alcohol and marijuana daily. He
accounted for her complaints about medication side effects, stating that “given the
claimant’s testimony” she would be off task fifteen per cent of a work day and would miss
work at least two days in a month as a result. Tr. 16. Plaintiff failed to prove that these
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alleged side effects would still be present, and at a disabling level, if she ceased her
polysubstance abuse.
Where the ALJ asks about medication side effects and notes the responsive
testimony in his written decision, he has sufficiently developed the record. Walker v.
Comm’r of Soc. Sec., 404 F. App’x 362 (11th Cir. 2010). The claimant must then prove
that the claimed side effects are severe enough to be disabling, considered alone or in
combination with other impairments. Id. at 367. Because one of her impairments is
substance abuse disorder, however, Plaintiff would have to prove that she would still be
disabled to work if she ceased alcohol and marijuana abuse. She has not done so and her
third contention has no merit.
CONCLUSION
The Court finds that none of Plaintiff’s assertions of error are meritorious.
Accordingly, the Commissioner’s decision is affirmed.
SO ORDERED, this 10th day of August, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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