Bostick v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

OSHA BOSTICK,

Plaintiff,

v. Case No. 8:22-cv-790-MAP

COMMISSIONER OF SOCIAL SECURITY

Defendant.

/

ORDER

This is an action for judicial review of an administrative denial of claims for a

period disability, disability insurance benefits (DIB), and Supplemental Security

Income (SSI).1 Plaintiff has a lengthy history with the Social Security system. Many

years ago, she received disability benefits, but the Commissioner eventually terminated

those benefits. She unsuccessfully reapplied and then unsuccessfully sought judicial

review in this district. See Bostick v. Kijakazi, Case No. 8:20-cv-314-CPT, Doc. 1 (M.D.

Fla. filed on Feb. 10, 2020) (Bostick I). During the pendency of her judicial action, she

filed another application for benefits, and that is the subject of this review (Tr. 291-

306). Notably, the two matters cover the same factual record; in fact, her first

applications allege a disability beginning January 1, 2018, and ours sets the disability

onset date as the next day. Importantly, she does not say in this new action that her

1 The parties have consented to my jurisdiction. See 28 U.S.C. § 636(c).

condition worsened since the first administrative denial. Instead, what she seems to

argue is that this Court should remand the matter because a second administrative law

judge should have developed the record more about her mental abilities, but that is the

same type of claim she unsuccessfully argued in her first judicial go-around. And, her

arguments again fail for the same host of reasons.

I. Standard of Review

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

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

determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than

twelve months. 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is an

“impairment that results from anatomical, physiological, or psychological

abnormalities, which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D).

And to regularize the adjudicative process, the Social Security Administration

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: whether the claimant is currently

engaged in substantial gainful activity; whether the claimant has a severe impairment,

i.e., one that significantly limits the ability to perform work-related functions; whether

the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404,

Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant

work. 20 C.F.R. § 416.920(a)(4)(i)-(iv). 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 his or her age,

education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). 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)(1).

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), 1383(c)(3). “Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as adequate

to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th

Cir. 2011) (citation and internal quotation marks omitted). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference

is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260

(11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh 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. Mitchell v. Comm’r of Soc. Sec., 771

F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178 (citations omitted);

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.

Ingram, 496 F.3d at 1260 (citation omitted). 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) (per curiam) (citations

omitted).

II. Background

Plaintiff, who was born in 1985, alleges a disability onset date of January 2,

2018, due to bipolar disorder, a learning disability, mania, and schizophrenia (Tr. 49,

292, 294, 305-06, 332). She has a ninth-grade education, but no past relevant work

experience (Tr. 68, 322, 333, 383). The ALJ concluded that Plaintiff met the insured

status requirements through December 31, 2022, and had not engaged in substantial

gainful activity since January 2, 2018, the alleged onset date and suffered from a

number of severe impairments: depression, borderline intellectual functioning, and

bipolar with schizophrenic traits (Tr. 13). Nonetheless, the ALJ found 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. 13), and she retained a residual functional capacity (RFC) to perform a full range

of work at all exertional levels (Tr. 15). However, the ALJ assessed Plaintiff’s

nonexertional limitations: could perform simple, routine tasks and make simple work-

related decisions; could tolerate frequent interaction with supervisors but only

occasional interaction with coworkers and the public; could not perform customer-

service work; and was able to tolerate routine workplace changes (Tr. 15). 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

medical evidence and other evidence (Tr. 16).

Given Plaintiff’s background and RFC, a vocational expert (VE) testified that

Plaintiff could perform jobs existing in significant numbers in the national economy,

such as a hand packager, a warehouse worker, and a laundry worker (Tr. 20).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 21). Given the ALJ’s

finding, Plaintiff requested review from the Appeals Council, which the Appeals

Council denied (Tr. 1-6, 287-88). Plaintiff then timely filed a complaint with this Court

(Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

III. Discussion

Plaintiff’s stated issue is that the ALJ erred by failing to properly develop the

record to determine if Plaintiff met the criteria for Listing 12.05 (intellectual disability),

but the details of her arguments vary off that theme to include a claim that the ALJ

should have ordered a consultative examination to test her IQ.2 What the ALJ

2 The Listing of Impairments describes, for each of the major body systems, impairments

considered severe enough to prevent an individual from doing any gainful activity. 20

specifically failed to do, however, is not all that noteworthy because the purported

omission relates to old information, and particularly information that Bostick I covered.

For example, she references a previous award of SSI benefits for a claim filed prior to

November 2004 as well as a mental consultative examination prepared by Thomas

Trimmer, Ph.D. – wherein Dr. Trimmer indicates that Plaintiff attained an IQ score

of 68 on the Wechsler Adult Intelligence Scale-Third Edition – that she contends does

not appear in the file before the ALJ.3 According to Plaintiff, the ALJ should have

incorporated into the record the medical evidence that supported her prior claim and

considered that evidence along with the more recent medical records and mental status

evaluations performed during the relevant period.

All these arguments are easily disposed of by the affirmative defense of res

judicata or claim preclusion, which serves to bar a subsequent action if: “(1) the prior

C.F.R. §§ 404.1525(a), 416.925(a). The Listings were designed to operate as a presumption

of disability that makes further inquiry unnecessary and thus require an impairment

preventing an adult from performing any gainful activity rather than just substantial gainful

activity. Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Indeed, conditions found in the

Listings are “irrebuttably presumed disabling, without any specific finding as to the

claimant’s ability to perform her past relevant work or any other jobs.” Richardson v. Apfel,

44 F. Supp. 2d 1264, 1265 (M.D. Fla. 1998) (citations omitted); see Edwards v. Heckler, 736

F.2d 625, 628 (11th Cir. 1984).

3 Plaintiff also attaches a September 2014 Mental RFC Assessment questionnaire submitted

by George Grubbs, Psy.D. (Doc. 19-1), but she makes no mention of the assessment from

Dr. Grubbs in her brief (Doc. 19). Any argument pertaining to the assessment from Dr.

Grubbs is therefore waived. Jacobus v. Comm'r of Soc. Sec., 664 F. App’x 774, 777 n.2 (11th

Cir. 2016) (finding that a plaintiff's perfunctory argument was arguably abandoned); Jones v.

Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (noting that when a party fails to

address a claim, the court deems such claim abandoned); Outlaw v. Barnhart, 197 Fed. App’x

825, 828 n.3 (11th Cir. 2006) (noting that an issue was waived because the claimant did not

elaborate on the claim or provide citation to authority about the claim). Regardless,

Plaintiff’s counsel submitted both the assessment from Dr. Grubbs and the report from Dr.

Trimmer to the ALJ, which the ALJ incorporated into the record (Tr. 507-14).

decision was rendered by a court of competent jurisdiction; (2) there was a final

judgment on the merits; (3) the parties were identical in both suits; and (4) the prior

and present causes of action are the same.” Davila v. Delta Air Lines, Inc., 326 F.3d

1183, 1187 (11th Cir. 2003) (internal quotation marks and citations omitted). But “res

judicata is an affirmative defense which must be pled, and may be waived, by the

defendant.” Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1289 (11th Cir.

2004). The Commissioner did not plead the defense, although a fair reading of the

Commissioner’s arguments is that Bostick I is dispositive of Plaintiff’s claims here.

Irrespective of the applicability of the doctrine, Plaintiff’s arguments are no better than

those the magistrate judge rejected in Bostick I.

Even though Social Security proceedings are inquisitorial rather than

adversarial in nature, claimants must establish their eligibility for benefits. Ingram,

496 F.3d at 1269 (11th Cir. 2007); 20 C.F.R. §§ 404.1512(a), 416.912(a). During the

administrative process, therefore, a claimant must inform the Social Security

Administration about or submit all evidence known to the claimant relating to whether

the claimant is blind or disabled. 20 C.F.R. §§ 404.1512(a), 416.912(a). Though the

claimant bears the burden of providing medical evidence showing she is disabled, the

ALJ is charged with developing a full and fair record. Ellison v. Barnhart, 355 F.3d

1272, 1276 (11th Cir. 2003). The ALJ maintains this basic obligation to develop a full

and fair record without regard for whether the claimant is represented by counsel.

Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). When the plaintiff demonstrates

that the record reveals evidentiary gaps which result in unfairness or “clear prejudice,”

remand is warranted. Id. at 935; Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th

Cir. 2015) (“Remand for further factual development of the record before the ALJ is

appropriate where the record reveals evidentiary gaps which result in unfairness or

clear prejudice.”) (internal quotation marks and citation omitted); Graham v. Apfel, 129

F.3d 1420, 1423 (11th Cir. 1997) (“However, there must be a showing of prejudice

before it is found that the claimant’s right to due process has been violated to such a

degree that the case must be remanded to the [Commissioner] for further development

of the record.”) (citation omitted).

Before determining whether a claimant is or is not disabled, the Social Security

Administration will develop the claimant’s complete medical history for at least the 12

months preceding the month in which the claimant files an application unless there is

a reason to believe that development of an earlier period is necessary or unless the

claimant indicates that his or her disability began less than 12 months before he or she

filed an application. 20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1); see Smith v. Comm’r of

Soc. Sec., 501 F. App’x 875, 878 (11th Cir. 2012) (per curiam) (finding that the ALJ has

a basic obligation to develop a full and fair record for the 12 months prior to the

claimant’s filing of the application for disability benefits) (citation omitted). An ALJ

is “in no way bound to develop the medical record” for the period beyond the 12

months prior to the application for benefits, however. See Ellison, 355 F.3d at 1276.

Despite this regulatory scheme, Plaintiff argues that the ALJ should have

obtained Dr. Trimmer’s December 2006 consultative examination report and medical

evidence from prior to November 2004 relating to a previous award of benefits and

considered such evidence in conjunction with her current application for benefits. And

she stands on this position even though these records were considered (or the like were

considered) during the reviews terminating her benefits and later rejecting her

reapplications for reinstatement. Indeed, Plaintiff advanced nearly identical

arguments in her prior appeal, which the magistrate judge considered, addressed, and

rejected. See Bostick I, Doc. 22. Moreover, the December 2006 report from Dr.

Trimmer, which she claims is missing, appears not once but twice in the record before

the ALJ (Tr. 509-10, 748-49). In fact, the ALJ explicitly addressed Dr. Trimmer’s

2006 report in the decision, noting that “[a] consultative examination prior to the

relevant period showed an IQ of 68” (Tr. 13, 16) and acknowledged that Plaintiff “had

previous claims regarding her mental health” (Tr. 16, 76-94, 515-19). Plaintiff’s

argument that the record contains an evidentiary gap as to Dr. Trimmer’s December

2006 report is without merit.

Further, the ALJ discussed Plaintiff’s mental impairments at length (Tr. 13-19).

While the ALJ only considered whether Plaintiff met the criteria for Listings 12.02

and 12.03 without addressing Listing 12.05, I can infer an implied finding that Plaintiff

did not meet the criteria for Listing 12.05. Flemming v. Comm’r of the Soc. Sec. Admin.,

635 F. App’x 673, 676 (11th Cir. 2015) (finding that there may be an implied finding

that a claimant does not meet the criteria for the listing, and, in the absence of an

explicit determination, a court may infer from the record that the ALJ implicitly

considered and found that a claimant’s disability did not meet a listing). More

importantly, as the Commissioner asserts, the Plaintiff does not show she is prejudiced

here. Plaintiff has the burden of proving an impairment meets or equals a listed

impairment. See Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). “To ‘meet’ a

Listing, a claimant must have a diagnosis included in the Listings and must provide

medical reports documenting that the conditions meet the specific criteria of the

Listings and the duration requirement.” Wilson, 284 F.3d at 1224; see also Barclay v.

Comm’r of Soc. Sec. Admin., 274 F. App’x 738, 741 (11th Cir. 2008). 4

As the Commissioner contends, the ALJ considered whether Plaintiff’s mental

impairments met the “paragraph B” criteria, which is identical for Listings 12.02,

12.03, and 12.05 (Tr. 13-15). Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.02,

12.03, 12.05. Mainly, to satisfy the “paragraph B” criteria, and thus meet one of the

referenced Listings, a claimant must show an extreme limitation of one, or marked

limitation of two, of the following areas of mental functioning: (1) understand,

remember, or apply information; (2) interact with others; (3) concentrate, persist or

maintain pace; and (4) adapt or manage oneself. 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§§ 12.02, 12.03, 12.05. Here, the ALJ found that Plaintiff experienced only moderate

limitations in understanding, remembering, or applying information; interacting with

others; and concentrating, persisting, or maintaining pace (Tr. 13-14). Significantly,

4 Plaintiff does not indicate whether she believes her mental impairments meet the criteria

for Listing 12.05A or 12.05B. Under Listing 12.05A, Plaintiff would need to show that she

had significantly subaverage general intellectual functioning evidence in her cognitive

inability to function at a level required to participate in standardized testing of intellectual

functioning. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05A. By relying on an IQ score and

arguing that the ALJ should have ordered another IQ test, it appears that Plaintiff seeks to

proceed as to the criteria for Listing 12.05B, which can be met with a full scale (or

comparable) IQ score of 70 or below. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B.

the ALJ concluded that Plaintiff experienced no limitations in adapting or managing

herself (Tr. 14-15).

In support, the ALJ relied upon Plaintiff’s lack of effort to stay compliant with

her medications, improvement of her symptoms with medication compliance, and

surveillance from the Cooperative Disability Investigations Unit, which revealed

footage of Plaintiff in April and May 2018 conducting transactions through self-

checkout lines at stores, interacting with a store employee, not requiring assistance to

select or purchase items, being dressed appropriately, and repeatedly driving herself to

the store and to appointments (Tr. 14-15, 754-60). The ALJ also noted that Plaintiff

maintained the ability to advocate for herself with medical professionals and research

symptoms on Google (Tr. 14-15, 698, 715). Additionally, the ALJ pointed to multiple

mental status evaluations performed during the relevant period by Lawrence Pasman,

Ph.D., where Plaintiff demonstrated some deficits but where Dr. Pasman also noted

that Plaintiff’s effort on tasks appeared “dubious,” some of her behaviors appeared

“exaggerated,” her “cooperation with the evaluation process was tenuous,” there

appeared “to be a degree of symptom embellishment,” and malingering needed to be

ruled out (Tr. 16-19, 522-27, 762-66, 768-72). As the ALJ found, the evidence, taken

as a whole, showed that outside of a clinical setting, Plaintiff could care for herself,

and Plaintiff showed no limitation in the domain of adapting or managing herself.

Substantial evidence supports the ALJ’s finding, and thus any claim that Plaintiff

could meet the paragraph B criteria for Listing 12.05, even with additional IQ testing,

necessarily fails.

IV. — Conclusion

For the foregoing reasons, the ALJ applied the correct legal standards, and the

ALJ’s decision is supported by substantial evidence. Accordingly, after consideration,

it is hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

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

Commissioner and close the case.

DONE AND ORDERED in Tampa, Florida, on this 13th day of July, 2023.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

cc: Counsel of Record

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