Taviere v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BEVERLY C. TAVIERE,

Plaintiff,

v. Case No: 8:18-cv-1182-T-JSS

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

___________________________________/

ORDER

Plaintiff, Beverly C. Taviere, seeks judicial review of the denial of her claim for a period

of disability, disability insurance benefits, and supplemental security income. As the

Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed

proper legal standards, the decision is affirmed.

BACKGROUND

A. Procedural Background

Plaintiff filed an application for a period of disability and disability insurance benefits on

July 2, 2015. (Tr. 118, 237–38.) Plaintiff also filed an application for supplemental security

income on July 6, 2015. (Tr. 118, 241–48.) The Commissioner denied Plaintiff’s claims both

initially and upon reconsideration. (Tr. 142–43, 146–47, 153–54, 159–60.) Plaintiff then

requested an administrative hearing. (Tr. 164–65.) Upon Plaintiff’s request, the ALJ held a

hearing at which Plaintiff appeared and testified. (Tr. 1–56.) Following the hearing, the ALJ

issued an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s

claims for benefits. (Tr. 118–28.) Subsequently, Plaintiff requested review from the Appeals

Council, which the Appeals Council denied. (Tr. 135–37.) Plaintiff then timely filed a Complaint

with this Court. (Dkt. 1) The case is now ripe for review under 42 U.S.C. § 405(g) and 42 U.S.C.

§ 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1964, claimed disability beginning on July 1, 2014. (Tr. 118,

241.) Plaintiff has some college education. (Tr. 8.) Plaintiff’s past relevant work experience

included work as an employment background investigator. (Tr. 127.) Plaintiff alleged disability

due to post traumatic stress disorder, insomnia, back pain, and anxiety. (Tr. 279.)

In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial

gainful activity since July 1, 2014, the alleged onset date. (Tr. 121.) After conducting a hearing

and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe

impairments: degenerative disc disease and osteoarthritis/allied disorders. (Tr. 121.)

Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 123.) The ALJ then concluded

that Plaintiff retained a residual functional capacity (“RFC”) to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except she

is precluded from climbing ladders, ropes, or scaffolds and remains able to no more

than occasionally perform the remaining postural functions. The claimant remains

able to no more than occasionally reach overhead bilaterally and can frequently

reach in all other directions. The claimant can have no more than occasional

exposure to vibration and workplace hazards such as unprotected heights and

moving machinery.

(Tr. 124.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints

and determined that, although the evidence established the presence of underlying impairments

that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to

the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with

the record. (Tr. 126.)

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), the ALJ determined that Plaintiff could perform her past relevant work as an employment

background investigator. (Tr. 127–28.) Accordingly, based on Plaintiff’s age, education, work

experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled. (Tr. 128.)

APPLICABLE STANDARDS

To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be

unable to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical,

physiological, or psychological abnormalities that are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a “sequential

evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an

individual is found disabled at any point in the sequential review, further inquiry is unnecessary.

20 C.F.R. § 416.920(a). Under this process, the ALJ must determine, in sequence, the following:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-

related functions; (3) whether the severe impairment meets or equals the medical criteria of 20

C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can perform his or her past

relevant work. If the claimant cannot perform the tasks required of his or her prior work, step five

of the evaluation requires the ALJ to decide if the claimant can do other work in the national

economy in view of the claimant’s age, education, and work experience. 20 C.F.R. § 416.920(a).

A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S.

137, 140–42 (1987); 20 C.F.R. § 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if it

is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C.

§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400

(11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the

factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &

Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

In reviewing the Commissioner’s decision, the court may not decide the facts anew, re-

weigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the

evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing

court sufficient reasoning for determining that he or she has conducted the proper legal analysis,

mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining

whether the findings of the Commissioner are supported by substantial evidence and whether the

correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

ANALYSIS

Plaintiff challenges the ALJ’s decision on the following grounds: (1) her counsel provided

ineffective assistance of counsel; and (2) the ALJ failed to develop the record regarding Plaintiff’s

mental impairments; and (3) the ALJ failed to ask the VE a hypothetical that encompassed all her

limitations.1 For the reasons that follow, none of these contentions warrant reversal.

A. Ineffective Assistance of Counsel

Plaintiff alleges that the attorney that represented her in the administrative process provided

ineffective assistance of counsel. (Dkt. 27 at 3–4.) Ineffective assistance of counsel claims arise

from the United States Constitution’s guarantee of effective counsel. See, e.g., Strickland v.

Washington, 466 U.S. 668, 684–91 (1984) (discussing the Sixth Amendment right to counsel in

criminal cases). However, because the “Supreme Court has never recognized a constitutional right

to counsel in Social Security proceedings,” Cornett v. Astrue, 261 F. App’x 644, 651 (5th Cir.

2008), several courts have held that “Social Security claimants cannot claim ineffective assistance

of counsel after they have hired counsel of their own choosing.” Gluchowski v. Comm’r of Soc.

Sec., No. 8:13–cv–924–T–30MAP, 2014 WL 2916750, at *5 n.7 (M.D. Fla. June 26, 2014)

(collecting cases). Accordingly, Plaintiff’s claim of ineffective assistance of counsel does not

warrant reversal.

1 To the extent Plaintiff attempts to raise any other issues, those issues are waived for insufficient development. See

(Dkt. 10) (ordering that “all discrete challenges must be supported by specific citation to the pages of the record relied

upon when discussing the pertinent facts, medical evidence, and opinion evidence and by citation to governing legal

authority that supports each challenge. Any contention for which these requirements are not met is subject to being

disregarded for insufficient development and denied without further consideration”); see also Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008) (explaining that while pro se briefs are read liberally, issues not properly briefed “are

deemed abandoned”); Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (2006) (finding an issue waived because the

plaintiff “did not elaborate on this claim or provide citation to authority about this claim”).

B. Development of the Record

Plaintiff’s primary allegation is that the ALJ failed to properly develop the record regarding

Plaintiff’s mental impairments. (Dkt. 26 at 4–5; 41 at Dkt. 41 at 2–3.) “[T]he ALJ has a basic

duty to develop a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003);

see 20 C.F.R. §§ 404.1512(b)(1)(ii), 416.912(b)(1)(ii) (stating that if the claimant alleges his

disability began less than 12 months before filing his application, the Commissioner will develop

the claimant’s complete medical history from the month the claimant alleges his disability began

to the month in which the application was filed). However, “the claimant bears the burden of

proving he is disabled,” Ellison, 355 F.3d at 1276, and has a duty to provide evidence supporting

his claim, 20 C.F.R. § 416.912 (a)(1) (“This duty is ongoing and requires you to disclose any

additional related evidence about which you become aware.”).

When the claimant is not represented at the hearing before the ALJ, which is not the case

here, the ALJ’s “obligation to develop a full and fair record rises to a special duty . . . to

scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts and

to be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances

are elicited.” Graham v. Apfel, 129 F.3d 1420, 1422–23 (11th Cir. 1997) (internal citations

omitted). However, even where the ALJ’s obligation to develop the record rises to a special duty,

“there must be a showing of prejudice before we will find that the . . . case must be remanded . . .

for further development of the record.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).

Prejudice may be shown where the ALJ has failed to elicit relevant testimony, consider all evidence

in the record, or where the record contains evidentiary gaps resulting in “unfairness or clear

prejudice.” Kelly v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985); see Brown, 44 F.3d at at 936

n.9 (finding that there may be unfair prejudice to a claimant where there is an evidentiary gap in

the record involving recent medical treatment).

It appears that Plaintiff is arguing that the ALJ erred in failing to use a Psychiatric Review

Technique Form (“PRTF”) to evaluate Plaintiff’s mental impairments. (Dkt. 27 at 5.) However,

the Social Security regulations simply require “the ALJ to use the ‘special technique’ dictated by

the PRTF for evaluating mental impairments” and “incorporate the results of this technique into

the findings and conclusions.” Moore v. Barnhart, 405 F.3d 1208, 1213–14 (11th Cir. 2005). To

accomplish this, the ALJ may “complete a PRTF and append it to the decision, or incorporate its

mode of analysis into his findings and conclusions.” Id. at 1214 (emphasis added). In this case,

the ALJ incorporated the PRTF mode of analysis into her decision.

The “special technique” dictated by the PRTF requires the ALJ to rate a claimant’s degree

of limitation in “four broad functional areas,” which assess the claimant’s ability to “[u]nderstand,

remember, or apply information; interact with others; concentrate, persist, or maintain pace; and

adapt or manage oneself.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). Utilizing this special

technique, the ALJ explained the evidence of record supporting her findings shows that Plaintiff

has only mild limitations in all four functional areas. (Tr. 121–23.) Because the ALJ properly

utilized the mode of analysis required by the PRTF and the Social Security regulations, Plaintiff

has not shown error.

Additionally, it appears that Plaintiff is arguing that the ALJ failed to develop the record

regarding Plaintiff’s impairments from 1990 to 1999. (Dkt. 27 at 5.) However, it is unclear what,

if any, records from that period exist and how they would be relevant to Plaintiff’s alleged onset

date of July 1, 2014. See Pennington v. Comm’r of Soc. Sec., 652 F. App’x 862, 871–72 (11th Cir.

2016) (finding that the plaintiff failed to demonstrate prejudice where he did not “assert any

medical records actually exist for the period from 2003 to 2010 or explain how such records would

be relevant to support his alleged onset date”). Plaintiff has not shown any evidentiary gaps or

prejudice in the ALJ’s development of the record in this case. See Kelly, 761 F.2d at 1540.

C. Hypothetical

Finally, it appears that Plaintiff is arguing that the ALJ did not pose a hypothetical to the

VE that accounted for the side effects of Zoloft. (Dkt. 26 at 3–4.) However, the ALJ specifically

accounted for the side effects of Plaintiff’s medication in limiting her to “no more than occasional

exposure to vibration and workplace hazards.” (Tr. 127.) Plaintiff does not challenge the ALJ’s

formulation of the RFC but suggests that Zoloft might cause suicidal ideation. (Dkt. 26 at 3; Dkt.

41 at 2.) But possible side effects do not show what Plaintiff actually experienced. See Werner v.

Comm’r of Soc. Sec., 421 F. App’x 935, 938 (11th Cir. 2011) (“Mere lists of potential side effects

do not establish that a claimant in fact experienced such side effects.”). Plaintiff cites no evidence

in the record to suggest she experienced such side effects and the ALJ is not required to include

unsupported findings in the hypothetical. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161

(11th Cir. 2004). Additionally, even if supported, the “hypothetical need only include ‘the

claimant’s impairments,’ not each and every symptom of the claimant.” Ingram v. Comm’r of Soc.

Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007) (internal citation omitted).

Because the ALJ posed a hypothetical question to the VE which comprised all of Plaintiff’s

impairments, the VE’s testimony constitutes substantial evidence. Wilson v. Barnhart, 284 F.3d

1219, 1227 (11th Cir. 2002). And because the ALJ’s decision is supported by substantial evidence,

this Court may not “decide the facts anew, reweigh the evidence, or substitute [its] judgment for

that of the Secretary.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983); see also

Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); Martin v. Sullivan, 894 F.2d 1520, 1529

(11th Cir. 1990) (“Even if the evidence preponderates against the Secretary’s factual findings, we

must affirm if the decision reached is supported by substantial evidence.”’).

CONCLUSION

Accordingly, after due consideration and for the foregoing reasons, it is

ORDERED:

1. The decision of the Commissioner is AFFIRMED; and

2. The Clerk of Court is directed to enter final judgment in favor of the Commissioner

and close the case.

DONE and ORDERED in Tampa, Florida, on September 3, 2019.

( i a if

JULIE 8. SNEED

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

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