Carroll v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EDWIN CARROLL,

Plaintiff,

v. Case No. 8:19-cv-1819-T-CPT

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

____________________________/

O R D E R

The Plaintiff seeks judicial review of the Commissioner’s denial of his claims

for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For

the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1967, completed two years of college, and has past

relevant work as a janitor, driver, embalmer, and funeral director. (R. 25, 45, 74). In

October 2015, the Plaintiff applied for DIB and SSI alleging disability as of August 8,

2015, due to a cataract, hypertension, hyperlipidemia, diabetes (type 2), and

hypertensive heart disease. (R. 225-32, 278). The Social Security Administration

denied his applications both initially and on reconsideration. (R. 100-01, 132-33).

At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a

hearing on the matter on April 26, 2018. (R. 38-81). The Plaintiff was represented by

counsel at that hearing and testified on his own behalf. Id. A vocational expert (VE)

also testified. Id.

In a decision dated September 19, 2018, the ALJ found that the Plaintiff:

(1) met the insured status requirements through December 31, 2020, and had not

engaged in substantial gainful activity since his alleged onset date of August 8, 2015;

(2) had the severe impairments of obesity, cardiomyopathy, hypertension, peripheral

neuropathy, and diabetes mellitus; (3) did not, however, have an impairment or

combination of impairments that met or medically equaled the severity of any of the

listed impairments; (4) had the residual functional capacity (RFC) to conduct a limited

range of light work; and (5) based on the VE’s testimony, could not engage in his past

relevant work but could perform other jobs that exist in significant numbers in the

national economy. (R. 15-27). In light of these findings, the ALJ concluded that the

Plaintiff was not disabled. (R. 27).

The Appeals Council denied the Plaintiff’s request for review. (R. 1-6).

Accordingly, the ALJ’s decision became the final decision of the Commissioner.

II.

The Social Security Act (the Act) defines disability as the “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or

mental impairment . . . which has lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also

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20 C.F.R. §§ 404.1505(a), 416.905(a).1 A physical or mental impairment under the

Act “results from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

To determine whether a claimant is disabled, the Social Security Regulations

(Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r

of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (citing 20 C.F.R. § 404.1520(a)(4));

see also 20 C.F.R. § 416.920(a)(4).2 Under this process, an ALJ must determine

whether the claimant: (1) is performing substantial gainful activity; (2) has a severe

impairment; (3) has a severe impairment that meets or equals an impairment

specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has the RFC to

engage in his past relevant work; and (5) can perform other jobs in the national

economy given his RFC, age, education, and work experience. Id. (citing Phillips v.

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4)). While the claimant has the burden of proof through step four, the

burden temporarily shifts to the Commissioner at step five. Sampson v. Comm’r of Soc.

Sec., 694 F. App’x 727, 734 (11th Cir. 2017) (citing Jones v. Apfel, 190 F.3d 1224, 1228

(11th Cir. 1999)). If the Commissioner carries that burden, the claimant must then

prove that he cannot perform the work identified by the Commissioner. Id. In the

1 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version

in effect at the time of the ALJ’s decision.

2 Unpublished opinions are not considered binding precedent but may be cited as persuasive

authority. 11th Cir. R. 36-2.

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end, “the overall burden of demonstrating the existence of a disability . . . rests with

the claimant.” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)

(quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).

A claimant who does not prevail at the administrative level may seek judicial

review in federal court provided the Commissioner has issued a final decision on the

matter after a hearing. 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner applied the correct legal standards and whether the

decision is supported by substantial evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r,

883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (citation omitted). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019) (citations and quotations omitted). In evaluating whether substantial evidence

supports the Commissioner’s decision, the Court may not decide the facts anew, make

credibility determinations, or re-weigh the evidence. Ross v. Comm’r of Soc. Sec., 794 F.

App’x 858, 860 (11th Cir. 2019) (per curiam) (quoting Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005)). “[W]hile the court reviews the Commissioner’s decision

with deference to [his] factual findings, no such deference is given to [his] legal

conclusions.” Keel-Desensi v. Berryhill, 2019 WL 1417326, at *2 (M.D. Fla. Mar. 29,

2019) (citations omitted).

III.

The Plaintiff raises two interconnected challenges on appeal regarding his

visual impairments. (Doc. 23). He first argues that the ALJ did not adequately

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consider his complaints of blurry vision and the medical evidence regarding same, and

asserts that he will separately move to remand the case under sentence six of section

405(g) for consideration of additional treatment records reflecting the problems he has

had with his eyesight. Id. at 8-11. Relatedly, the Plaintiff also contends that the ALJ’s

reliance on the VE’s testimony is flawed because the ALJ did not include in either her

RFC finding or her hypothetical question to the VE a limitation accounting for the

Plaintiff’s vision issues. Id. at 17-18. Upon a thorough review of the Plaintiff’s claims,

the Commissioner’s response to same, id. at 11-19, and the record, the Court finds no

cause for remand.

A.

As noted above, part of the ALJ’s task at step four of the sequential evaluation

process is to assess a claimant’s RFC. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545.

To do so, an ALJ must determine from all the relevant evidence of record what a

claimant can do in a work setting notwithstanding any physical or mental limitations

caused by the claimant’s impairments and related symptoms. Id. at § 404.1545(a)(1).

The items the ALJ must consider in conducting this analysis include any medical

opinions of record, all of the claimant’s medically determinable impairments (both

severe and non-severe), the total limiting effects of each impairment, and the

claimant’s subjective symptoms. Id. at §§ 404.1520(e), 404.1545(a); see Jamison v.

Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (stating that the “ALJ must consider the

applicant’s entire medical condition”).

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The evaluation of a claimant’s subjective symptoms is governed by the “pain

standard.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam). Under

this standard, the claimant must show “(1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms the severity of the

alleged pain arising from the condition or (3) that the objectively determined medical

condition is of such severity that it can be reasonably expected to give rise to the alleged

pain.” Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)).

Where a claimant satisfies the pain standard, the Regulations dictate that the

ALJ then assess the intensity and persistence of the claimant’s symptoms to determine

how they limit the claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c), 416.929(c);

see also Social Security Ruling (SSR) 16-3p, 2017 WL 5180304 (Oct. 25, 2017)

(applicable as of Mar. 28, 2016). The considerations relevant to this assessment

include the objective medical evidence; evidence of factors that precipitate or aggravate

the claimant’s symptoms; medications and treatments available to alleviate those

symptoms; the type, dosage, effectiveness, and side effects of such medications and

treatments; how the symptoms affect the claimant’s daily activities; and the claimant’s

past work history. Id. A claimant’s subjective testimony supported by medical

evidence that satisfies the pain standard is itself sufficient to support a finding of

disability. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (citations omitted).

“After considering a claimant’s complaints of pain, the ALJ may reject them

as not creditable, and that determination will be reviewed for substantial evidence.”

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler, 734

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F.2d 513, 517 (11th Cir. 1984)). If the ALJ elects to discount the claimant’s subjective

testimony, she must “articulate explicit and adequate reasons” for doing so. Dyer, 395

F.3d at 1210 (quotation and citation omitted). An ALJ, however, “need not cite

particular phrases or formulations” in performing this evaluation, so long as the

reviewing court can be satisfied that she “considered [the claimant’s] medical

condition as a whole.” Id. at 1210 (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th

Cir. 1995)) (internal quotation marks omitted). A reviewing court will not disturb a

clearly articulated credibility finding that is supported by substantial evidence in the

record. Foote, 67 F.3d at 1562 (citation omitted).

In this case, the ALJ applied the pain standard and then decided not to credit

the Plaintiff’s subjective complaints, which encompassed his allegations of blurry

vision. See (R. 20-21). In support of this determination, the ALJ noted that, although

the Plaintiff’s impairments (such as his eyesight issues) “could reasonably be expected

to cause the alleged symptoms . . . the [Plaintiff’s] statements concerning the intensity,

persistence and limiting effects of these symptoms [we]re not entirely consistent with

the medical evidence and other evidence in the record.” Id. at 21. The ALJ identified

several reasons throughout her decision for questioning the Plaintiff’s subjective

complaints, including that: (1) “the medical record reflected no actual treatment as of

the alleged disability onset date, with apparently no triggering event, exacerbation of

symptoms, or episode of decompensation on or around” the onset date; (2) the Plaintiff

was working eight hours per week as a substitute teacher three months after his alleged

onset date; and (3) no physician, psychiatrist, or psychologist documented the

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Plaintiff’s impairments with sufficient medical facts and clinical findings to

corroborate the Plaintiff’s allegations of disabling symptoms. (R. 21, 25).

Regarding the Plaintiff’s alleged visual symptoms in particular, the ALJ

reviewed the medical evidence and observed that, on several occasions, the Plaintiff

denied problems with his eyes, including double vision, worsening vision, and vision

loss. (R. 21-23). The ALJ also noted that, during an examination conducted by a state

agency physician, Dr. Sunita Patel, the Plaintiff’s vision was normal, and no visual

limitations were found. (R. 22). The ALJ additionally commented that the Plaintiff

denied having blurred vision while being seen for elevated blood glucose levels at a

hospital in April 2018. (R. 23). In short, the ALJ found the Plaintiff’s claim that he

experienced blurry vision to be “poorly support[ed].” (R. 21).

The Plaintiff does not meaningfully challenge the ALJ’s findings regarding his

subjective complaints or the ALJ’s discussion of the above medical evidence. Instead,

he points to one treatment note on April 12, 2016, which reflects that he complained

of eye dryness, blurry vision, and difficulty driving and reading (Doc. 23 at 10) (citing

R. 615), as well as a medical source statement prepared by a consultative examiner,

Dr. Eniola Owi, which indicates that he is “unable to read very small print,” id. (citing

R. 865).

With respect to the April 12, 2016, entry, the Plaintiff is correct that the ALJ

did not specifically mention that record. An ALJ, however, is not obligated to

reference every piece of evidence in her decision, so long as her decision demonstrates

she considered the claimant’s medical condition as a whole. Dyer, 395 F.3d at 1211.

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Based on the ALJ’s discussion of the evidence listed above, the Court is satisfied she

did so here.

The Court likewise finds no error in the ALJ’s evaluation of Dr. Owi’s medical

source statement. In her decision, the ALJ summarized Dr. Owi’s opinion pertaining

to the Plaintiff’s vision-related limitations and afforded it “great weight” because the

doctor’s assessment was “generally consistent with the record as a whole, which

reflected generally unremarkable examination findings.” (R. 24). Although not

explicitly mentioned by the ALJ, Dr. Owi’s medical source statement reveals that,

despite the Plaintiff’s inability to “read very small print,” his eyesight is sufficient to

allow him to avoid hazards in the workplace; read ordinary newspaper or book print;

view a computer screen; and distinguish differences in the shape and color of small

objects, such as screws, nuts, or bolts. (R. 865). The Plaintiff fails to show that Dr.

Owi’s opinion undermines the ALJ’s evaluation of the Plaintiff’s subjective allegations

or required the ALJ to impose a more restrictive RFC than she did.3

3 Even assuming arguendo that the ALJ erred in not discussing this particular aspect of Dr.

Owi’s opinion, any such error was harmless because Dr. Owi’s determination that the Plaintiff

could not read very small print does not directly contradict the ALJ’s RFC determination. See

Cooper v. Astrue, 373 F. App’x 961, 962 (11th Cir. 2010) (per curiam) (citing Diorio v. Heckler,

721 F.2d 726, 728 (11th Cir. 1983) (stating that an error is harmless when it does not prejudice

a claimant)); Caldwell v. Barnhart, 261 F. App’x 188, 191 (11th Cir. 2008) (per curiam) (finding

that the ALJ’s failure to discuss weight given to a physician’s opinion constituted harmless

error when the opinion did not contradict the ALJ’s finding and was substantially similar to

that of another doctor whose opinion was given substantial weight); Wright v. Barnhart, 153 F.

App’x 678, 684 (11th Cir. 2005) (per curiam) (finding harmless error where the ALJ failed to

explicitly state what weight he afforded to a number of physicians’ medical opinions where

none of those opinions directly contradicted the ALJ’s findings).

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In sum, the Court cannot agree with the Plaintiff’s contention that the ALJ

erred in applying the pain standard in assessing his subjective complaints. The ALJ

adequately summarized and considered the Plaintiff’s complaints regarding his eye

problems but ultimately found the Plaintiff not to be entirely credible. By the Court’s

review, the ALJ articulated explicit and adequate reasons for discounting the

Plaintiff’s allegations of completely disabling symptoms. See Dyer, 395 F.3d at 1210.

Nothing in the Plaintiff’s brief, nor in the Court’s independent review of the record,

leads to the conclusion that the ALJ’s findings are not supported by substantial

evidence or otherwise in error. See Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939

(11th Cir. 2011) (per curiam) (“The question is not . . . whether [the] ALJ could have

reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly wrong

to discredit it.”); Davis v. Astrue, 346 F. App’x 439, 441 (11th Cir. 2009) (per curiam)

(finding the ALJ’s credibility findings were supported by substantial evidence in the

record). To the contrary, the Court is satisfied that the ALJ made a sufficiently clear

determination regarding the Plaintiff’s vision-related allegations that is amply

bolstered by the record evidence. Thus, the Court finds no cause for remand on this

claim.

B.

The Plaintiff’s suggestion that he is entitled to a sentence six remand is also

unfounded. To begin, although he represents in his memorandum submitted more

than two months ago that he intends to seek such relief, Plaintiff has not filed a motion

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requesting a sentence six remand. Therefore, it appears that this request has been

waived.

Even were that not the case, a sentence six remand is not supported by the

record before the Court. When reviewing final agency decisions on Social Security

benefits, the sixth sentence of 42 U.S.C. § 405(g) “provides the sole means for a district

court to remand to the Commissioner to consider new evidence presented for the first

time to the district court.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1267

(11th Cir. 2007). That provision states:

The court may . . . at any time order additional evidence to be taken

before the Commissioner of Social Security, but only upon a showing

that there is new evidence which is material and that there is good cause

for the failure to incorporate such evidence into the record in a prior

proceeding . . . .

42 U.S.C. § 405(g).

As this language establishes, to demonstrate grounds for a sentence six remand,

a plaintiff must show that “(1) there is new, noncumulative evidence, (2) the new

evidence is ‘material,’ that is, [chronologically] relevant and probative so that there is

a reasonable possibility that it would change the administrative result, and (3) there is

good cause for the failure to submit the evidence at the administrative level.” Hunter

v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 821 (11th Cir. 2015) (quotation omitted); see

also Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016) (per curiam)

(explaining that evidence is “chronologically relevant” if “it relates to the period on or

before the date of the [ALJ’s] hearing decision”) (quoting 20 C.F.R. §§ 404.970(b),

416.1470(b)).

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The Plaintiff fails to meet his burden of demonstrating a basis for a sentence six

remand here. Although he states that he wishes to have the ALJ consider “new”

evidence, he does not identify with any specificity the nature and time frame of that

purportedly new evidence. Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (defining

“new” evidence as that which was not previously available to the ALJ).

The Plaintiff also does not show that any of the records at issue are material.

In particular, the Plaintiff fails to explain how these records relate back to his insured

period or why the records would change the ALJ’s determination of no disability.

And, he presents no foundation to support a good cause finding. As a result, a remand

for consideration of additional evidence pursuant to sentence six is unwarranted.

C.

For reasons similar to those set forth above, the Court is likewise unpersuaded

by the Plaintiff’s remaining argument that the ALJ’s reliance on the VE’s testimony is

flawed because the ALJ did not include in either her RFC finding or her hypothetical

question to the VE a limitation accounting for the Plaintiff’s vision problems.

As noted, the RFC analysis requires the ALJ to make a determination based

on the claimant’s medical condition “taken as a whole,” Jamison, 814 F.2d at 588, after

reviewing the medical opinions, the claimant’s allegations of subjective symptoms,

and all of the other relevant evidence of record, 20 C.F.R. §§ 404.1520(e), 404.1545(a).

As long as the ALJ considers this evidence, the final responsibility for deciding a

claimant’s RFC and his ability to work rests with the ALJ. 20 C.F.R. § 404.1527(d)(2).

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A fair reading of the ALJ’s decision in this case indicates that she evaluated

both the record and the entirety of the Plaintiff’s condition, and then assessed an RFC

for the Plaintiff that included significant limitations. The Plaintiff fails to demonstrate

that the ALJ’s RFC assessment does not fairly cover his limitations or that his

limitations are greater than those determined by the ALJ. As such, the Plaintiff has

not shown that the ALJ’s RFC finding is in error.

As for the Plaintiff’s related contention regarding the ALJ’s hypothetical posed

to the VE, case law dictates that such a hypothetical be accurate, bolstered by the

record, and include all restrictions of the particular claimant. See Wilson v. Barnhart,

284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam) (citing Jones v. Apfel, 190 F.3d 1224,

1229 (11th Cir. 1999)). Where the hypothetical question asked of a VE does not

comprehensively describe all of the claimant’s impairments and limitations, an ALJ’s

decision that is based significantly on the VE’s testimony will be deemed unsupported

by substantial evidence. Pendley v. Heckler, 767 F.2d 1561, 1562-63 (11th Cir. 1985)

(per curiam) (quoting Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)). Of relevance

here, however, an ALJ need not include findings in her hypothetical question that she

has properly discounted or rejected as unsupported. Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam). Because the ALJ did not err in

rejecting visual limitations for the Plaintiff in making her RFC finding, she was not

required to include such restrictions in her questioning of the VE.

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IV.

For the foregoing reasons, it is hereby ORDERED:

1. The Commissioner’s decision is affirmed.

2. The Clerk is directed to enter Judgment in the Defendant’s favor and to

close the case.

DONE and ORDERED in Tampa, Florida, this 10th day of September 2020.

tiNediow Pe Ack.

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record

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