Chappell v. Berryhill

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . The Court AFFIRMS the ActingCommissioners final decision, and DIRECTS the Clerk of Court to CLOSE this case and ENTER final judgment in favor of the Acting Commissioner. Signed by District Judge R. Stan Baker on 3/1/19. (jrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

KERRY CHAPPELL,
Plaintiff,

CIVIL ACTION NO.: 4:17-cv-240

v.
NANCY BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

ORDER
After a careful de novo review of the entire record, the Court concurs with the Magistrate
Judge's January 15, 2019 Report and Recommendation, (doc. 15), to which objections have been
filed (doc. 19). Accordingly, Court OVERRULES plaintiff’s objections, ADOPTS the Report
and Recommendation as supplemented herein as the opinion of the Court, AFFIRMS the Acting
Commissioner’s final decision, and DIRECTS the Clerk of Court to CLOSE this case and
ENTER final judgment in favor of the Acting Commissioner.
Plaintiff, who was 46 years old when the ALJ issued his opinion, 1 disputes the Report and
Recommendation affirming the ALJ’s credibility finding because the Magistrate Judge cited an
unpublished case, Carson v. Comm’r of Soc. Sec. Admin, 300 F. App’x 741 (11th Cir. 2008), cited
in doc. 15 at 6 n. 4. (Doc. 19 at 2.) Of course, simply because the Court encourages Social
Security claimants to cite to binding authority (see doc. 3 at 3 (Court’s General Order for Social
Security Appeals)), does not prohibit the Court from citing such persuasive authority. See, e.g.,
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Plaintiff correctly points out the typographical error in the Magistrate Judge’s Report and
Recommendation, which incorrectly identified her age as 36. (Doc. 19 at 6.)

11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.”). Particularly for a noncontroversial rule statement like “[a]s the
ALJ articulated at least one valid reason for discounting [plaintiff’s] testimony, however, the
misstatement is harmless.” (Doc. 15 at 6. n. 4.) As plaintiff herself notes, the law of this Circuit
is that an ALJ’s “misstatements are harmless where they do not affect the outcome.” (Doc. 19
at 2, citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).)
The Magistrate Judge concluded that the ALJ permissibly pointed to three differing
descriptions of plaintiff’s termination from her last job (i.e., that she was going to be laid off, that
she was fired, and that she walked off the job because she couldn’t handle the stress, tr. 22) as
being inconsistent. (Doc. 15 at 6-7.) See Perez Guerrero v. Colvin, 2016 WL 4807953 at *6
(S.D. Fla. Mar. 23, 2016) (“Factors that an ALJ may consider in weighing a claimant’s credibility
include reputation for truthfulness, inconsistencies in testimony or between testimony and
conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or
follow a prescribed course of treatment.”) (quote and cite omitted)). And plaintiff — though
admitting that her statements about leaving her last job “are not identical” — attempts, yet again,
to have this Court reweigh the ALJ’s credibility finding. That it cannot do, even if it might have,
in the first instance, reached a contrary conclusion. (Doc. 15 at 7, collecting citations; see tr.
275-76 (affidavit from Chappell’s employer affirming her self-reported mental difficulties with
working).) After all, “the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022,
1027 (11th Cir. 2004); Powell v. Heckler, 773 F.2d 1572 (11th Cir. 1985) (when the Commissioner
articulates adequate reasons for rejecting a claimant’s testimony, this Court may not substitute its
own judgment for that of the Commissioner). And, of course, even if plaintiff is correct that the

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ALJ gave multiple improper reasons for discounting her credibility, the articulation of one
specific, valid reason means that the outcome would be unchanged. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 118-59 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, we must affirm if the decision reached is supported by substantial
evidence.”).
Chappell also disputes the Magistrate Judge’s rule statement for the review of medical
opinion evidence, emphasizing that an ALJ cannot substitute his own opinion for that of a
competent, acceptable medical source. (Doc. 19 at 4-5.) While she is certainly correct on that
point of law, the Magistrate Judge did not err by affirming the ALJ’s rejection of Licensed Social
Worker Edward Parks’ unsupported, conclusory checklist opinion.

First, Parks is a

non-acceptable medical source and thus — though plaintiff would have it otherwise — his opinion
is not entitled to the same weight or credibility analysis as any physician or other acceptable
medical source. (Doc. 15 at 10-11, citing 20 C.F.R. § 416.913(a), SSR 06-03, p. 7; 20 C.F.R.
§§ 404.1513(d) & 416.913(d).) As explained in the Report and Recommendation, all that is
required of an ALJ regarding non-medical source evidence is that the evidence be considered.
(Id., citing, inter alia, 20 C.F.R. §§ 416.926, 416.926a, 416.927, 416.929.) And the ALJ properly
rejected Parks’ opinion because it was offered without even the slightest hint to his own observed
supporting clinical signs or symptoms or any objective medical testing. (Id., at 11-12, citing
Carter v. Colvin, 2017 WL 360926 at *2 (S.D. Ga. Jan. 3, 2017).) Chappell’s protest, that the
ALJ could have relied upon Parks’ opinion if only he had searched the record for evidence to
support it, misunderstands both the nature of the ALJ’s role and the weight Dr. Parks’ opinion
would be entitled to even had it been fully credited. (Doc. 15 at 11-12 (explaining that “a
conclusory checklist without supporting rationale is not enough for an acceptable medical

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source”), id. at n. 6 (reiterating that Parks is not an acceptable medical source).)
Finally, plaintiff disputes the Magistrate Judge’s finding that Chappell failed to identify
what about the ALJ’s RFC assessment would change had he fully credited consultative examiner
Dr. John Whitley’s opinion that Chappell “may be” vulnerable to decompensate under excessive
stress, demand, and changes during a typical workday and “may” function best in a home-based
environment. (Doc. 15 at 13, citing tr. 395.) Plaintiff contends that the Court improperly did the
ALJ’s job for him by noting she had not demonstrated any error in failing to fully credit Dr.
Whitley’s opinion. (Doc. 19 at 5-6.) But the Court cannot remand for reconsideration as an
intellectual exercise. There must be some error to warrant remand. Plaintiff still does not show
that the ALJ erroneously formulated his RFC, even had the non-concrete, suggestive limitations of
Dr. Whitley’s opinion been fully credited. (See doc. 15 at 13-14, citing tr. 21 (ALJ’s RFC
assessment limiting Chappell to “routine” work with “few changes” at an SVP of 1-2 (simple,
routine work), and also limiting her to only occasional interpersonal interactions and
recommending she would be “better off working alone.”) and noting plaintiff had not hinted how
these restrictions were inconsistent with Dr. Whitley’s suggestions that she “may be” vulnerable to
decompensation and “may” function best at home.) Put differently, the Magistrate Judge did not
provide a post-hoc rationale for the ALJ’s decision. (Doc. 19 at 6.) Rather, the Court found that
plaintiff had not shown why — even had the ALJ erred — remand was required to reconsider Dr.
Whitley’s opinion. (Doc. 15 at 13-14.) She still has not.

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For all of these reasons as well as those stated by the Magistrate Judge, the Court
AFFIRMS the Commissioner’s decision.
SO ORDERED, this 1st day of March, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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