Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AHMAD BROWN,

Plaintiff,

v. Case No. 8:22-cv-2737-JRK

MARTIN J. O’MALLEY,

Commissioner of Social Security,1

Defendant.

OPINION AND ORDER2

I. Status

Ahmad Brown (“Plaintiff”) is appealing the Commissioner of the Social

Security Administration’s (“SSA(’s)”) final decision denying his claim for

supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the

result of back pain, neck pain, leg pain, a traumatic brain injury, muscle

spasms, bipolar disorder, anxiety, depression, seizures, memory loss, and loss

of smell. Transcript of Administrative Proceedings (Doc. No. 8; “Tr.” or

1 Mr. O’Malley was sworn in as Commissioner of the Social Security

Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil

Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.

No further action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. ' 405(g).

2 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 10), filed January 30, 2023; Reference Order (Doc. No. 12), entered February 2, 2023.

“administrative transcript”), filed January 30, 2023, at 76, 92, 220. Plaintiff

protectively filed an application for SSI on October 13, 2020, alleging a

disability onset date of November 6, 2019. Tr. at 203-09.3 The application was

denied initially, Tr. at 75-90, 91, 112-18, 119, 121, and upon reconsideration,

Tr. at 92-102, 103, 124-25.4

On December 9, 2021, an Administrative Law Judge (“ALJ”) held a

hearing,5 during which Plaintiff (represented by counsel) and a vocational

expert (“VE”) testified. Tr. at 31-48. At the time, Plaintiff was forty-one (41)

years old. Tr. at 34. On February 25, 2022, the ALJ issued a Decision finding

Plaintiff not disabled since the date the SSI application was filed. See Tr. at 15-

26.6

Thereafter, Plaintiff sought review of the Decision by the Appeals

Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 191-93 (request

for review), 317 (brief). On September 27, 2022, the Appeals Council denied

3 The SSI application was actually completed on October 30, 2020, Tr. at 203, but

the protective filing date is listed elsewhere in the administrative transcript as October 13,

2020, Tr. at 76, 92. The administrative transcript also contains an application for and denial

of disability insurance benefits (DIB) because Plaintiff did not have enough work credits. Tr.

at 196-202, 108-10. That denial is not at issue here.

4 Some of these cited documents are duplicates.

5 The hearing was held via telephone, with Plaintiff’s consent, because of

extraordinary circumstances presented by the earlier stages of the COVID-19 pandemic. Tr.

at 33, 127-40, 156-57, 183-84.

6 The administrative transcript also contains an ALJ decision dated November 5,

2019 and an Appeals Council Order that adjudicated prior-filed claims for DIB and SSI. Tr. at

52-62, 70-72. The adjudication of the prior-filed claims is not at issue here.

Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision the

final decision of the Commissioner. On December 1, 2022, Plaintiff commenced

this action under 42 U.S.C. § 405(g), as incorporated by § 1383(c)(3), by timely

filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s

final decision.

On appeal, Plaintiff argues the ALJ erred in “finding that [Plaintiff] had

the severe impairment of anxiety, but failing to craft a residual functional

capacity [(‘RFC’)] that accommodates this impairment.” Memorandum in

Opposition to the Commissioner’s Decision (Doc. No. 15; “Pl.’s Mem.”), filed

April 17, 2023, at 3 (emphasis and capitalization omitted). On July 7, 2023,

Defendant responded to Plaintiff’s argument by filing a Memorandum in

Support of the Commissioner’s Decision (Doc. No. 20; “Def.’s Mem.”). After a

thorough review of the entire record and the parties’ respective arguments, the

undersigned finds that the Commissioner’s final decision is due to be affirmed.

II. The ALJ’s Decision

When determining whether an individual is disabled,7 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

7 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

Regulations (“Regulations”), determining as appropriate whether the claimant

(1) is currently employed or engaging in substantial gainful activity; (2) has a

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7

F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of

persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 17-26.

At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since October 13, 2020, the application date.”8 Tr. at 17

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

the following severe impairments: sciatica, history of traumatic subdural

hemorrhage, depression, and anxiety.” Tr. at 17 (emphasis and citation

omitted). At step three, the ALJ ascertained that Plaintiff “does not have an

impairment or combination of impairments that meets or medically equals the

8 Plaintiff did work after the alleged onset date, but the ALJ found this work did

not rise to the level of substantial gainful activity. Tr. at 17.

severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1.” Tr. at 18 (emphasis and citation omitted).

The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform light work as defined in 20 CFR [§]

416.967(b) except [Plaintiff] can lift and/or carry 20 pounds

occasionally and 10 pounds frequently; stand and/or walk 6 hours

in an 8-hour day; sit for 6 hours in an 8-hour day; occasionally climb

ramps and stairs, balance, stoop, kneel, crouch, and crawl; no

climbing ladders and scaffolds; occasionally work around moving,

mechanical parts; no working around high, exposed places; able to

perform simple, routine, repetitive tasks; able to understand,

remember, and carry out simple instructions; limited to work that

requires occasional changes in the work setting; and unable to meet

fast paced, high production demands.

Tr. at 20 (emphasis omitted).

At step four, the ALJ found that Plaintiff “is unable to perform any past

relevant work” as a “lawn service worker” and a “sales clerk, retail.” Tr. at 25

(some emphasis and citation omitted). At the fifth and final step of the

sequential inquiry, after considering Plaintiff’s age (“40 years old . . . on the

date the application was filed”), education (“at least a high school education”),

work experience, and RFC, the ALJ relied on the VE’s testimony and found that

“there are jobs that exist in significant numbers in the national economy that

[Plaintiff] can perform,” Tr. at 25 (emphasis and citations omitted), such as

“Office Helper,” “Marker,” and “Marker II,” Tr. at 26. The ALJ concluded

Plaintiff “has not been under a disability . . . since October 13, 2020, the date

the application was filed.” Tr. at 26 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff challenges the ALJ’s assessment of his RFC as it relates to his

allegation that he suffers daily panic attacks as a result of his anxiety. Pl.’s

Mem. at 3-5. According to Plaintiff, the ALJ improperly rejected Plaintiff’s

allegations without “adequate resolution of the panic attacks issue.” Id. at 4.

Responding, Defendant argues that the ALJ assigned an RFC that is consistent

with the evidence, and the ALJ recognized, without fully accepting, Plaintiff’s

panic attack allegations. Def.’s Mem. at 5-11.

“[T]o establish a disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part showing:

(1) evidence of an underlying medical condition; and (2) either (a) objective

medical evidence confirming the severity of the alleged pain; or (b) that the

objectively determined medical condition can reasonably be expected to give rise

to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)

(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard

is itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

The Regulations provide that an ALJ “will” consider the following factors

related to pain and other symptoms:

(i) [The claimant’s] daily activities; (ii) The location,

duration, frequency, and intensity of [the claimant’s]

pain or other symptoms; (iii) Precipitating and

aggravating factors; (iv) The type, dosage,

effectiveness, and side effects of any medication [the

claimant] take[s] or ha[s] taken to alleviate [his or her]

pain or other symptoms; (v) Treatment, other than

medication, [the claimant] receive[s] or ha[s] received

for relief of [his or her] pain or other symptoms; (vi) Any

measures [the claimant] use[s] or ha[s] used to relieve

[his or her] pain or other symptoms . . .; and (vii) Other

factors concerning [the claimant’s] functional

limitations and restrictions due to pain or other

symptoms.

20 C.F.R. § 404.1529(c)(3)(i)-(vii); see Raper v. Comm’r of Soc. Sec., 89 F.4th

1261, 1277 (11th Cir. 2024). The factors must be considered “in relation to other

evidence in the record and whether the claimant’s statements conflict with

other evidence.” Raper, 89 F.4th at 1277 (citation omitted); see 20 C.F.R. §

404.1529(c)(4). To reject the claimant’s assertions of subjective symptoms,

“explicit and adequate reasons” must be articulated by the ALJ. Wilson, 284

F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v. Sullivan, 957 F.2d

837, 839 (11th Cir. 1992).

The RFC assessment “is the most [a claimant] can still do despite [his or

her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine

whether a claimant can return to his or her past relevant work, and if necessary,

it is also used at step five to determine whether the claimant can perform any

other work that exists in significant numbers in the national economy. 20 C.F.R.

§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider

limitations and restrictions imposed by all of an individual’s impairments, even

those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.

Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink

v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019)); Swindle v.

Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating that “the ALJ must

consider a claimant’s impairments in combination”) (citing 20 C.F.R. §

404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)).

Here, the ALJ adequately assessed Plaintiff’s subjective complaints of

panic attacks, ultimately arriving at an RFC that is supported by substantial

evidence. To begin, the ALJ discussed Plaintiff’s testimony and his wife’s

reports that Plaintiff experiences panic attacks on a daily basis. Tr. at 21-22;

see Tr. at 36-37 (Plaintiff testifying about the attacks), 231-33 (Plaintiff’s wife’s

report).

As to Plaintiff’s and his wife’s allegations, the ALJ found the “statements

concerning the intensity, persistence, and limiting effects of . . . [Plaintiff’s]

symptoms are not entirely consistent with the medical evidence and other

evidence in the record.” Tr. at 22. The ALJ then found specifically as to the

alleged panic attacks that Plaintiff’s “mental status examinations were

unremarkable” and that Plaintiff’s and his wife’s allegations “are only partially

consistent because the treatment records do not support their allegations.” Tr.

at 22.

Discussing the medical evidence, the ALJ wrote that recent progress

notes showed stable anxiety and depression. Tr. at 22 (citing Ex. B2F at 5-11,

located at Tr. at 366-72). The ALJ also noted other mental status exams being

stable. Tr. at 23 (citations omitted). The ALJ did not discuss in detail progress

notes from Plaintiff’s psychiatric provider, likely because they are very difficult

to read. See Tr. at 486-508, 530-32, 587-614.9 The Court notes that March 2020

and March 2018 diagnostic interviews from this provider do not even associate

Plaintiff’s anxiety with panic attacks. Tr. at 494, 506.

The ALJ, after summarizing the evidence, assigned an RFC that restricts

Plaintiff to “simple, routine, repetitive tasks” with the “ab[ility] to understand,

remember, and carry out simple instructions”; tolerance for “occasional changes

in the work setting”; and “[inability] to meet fast paced, high production

demands.” Tr. at 20. These mental restrictions show that the ALJ accepted in

part what Plaintiff alleged about his limitations. Plaintiff essentially invites the

Court to reweigh the evidence on this matter and determine that the RFC

restriction was insufficient. The Court declines to do this. The ALJ’s findings

are supported by substantial evidence and need not be disturbed.

9 Some of these records are duplicated in the administrative transcript.

V. Conclusion

The ALJ’s Decision is supported by substantial evidence. Based on the

foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as incorporated by § 13838(c)(3),

AFFIRMING the Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on March 20, 2024.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge

kaw

Copies to:

Counsel of Record

-11-