# Brown v. Kijakazi(CONSENT)

> District Court, M.D. Alabama · May 27, 2022

URL: https://www.frixlaw.com/law-library/cases/9987809

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** May 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JESSE JOSEPH BROWN, )
)
Plaintiff, )
)
v. ) CASE NO. 2:20-cv-983-JTA
) (WO)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), the claimant, Jesse Joseph Brown (“Brown”), brings
this action to review a final decision by the Commissioner of Social Security
(“Commissioner”). (Doc. No. 1.)1 The Commissioner denied Brown’s claim for
Supplemental Security Income (“SSI”) (Id.) The parties have consented to the exercise of
dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Docs. No.
10, 11.)
After careful scrutiny of the record and the briefs submitted by the parties, the Court
finds that the decision of the Commissioner is due to be AFFIRMED.

1 Document numbers, as they appear on the docket sheet, are designated as “Doc. No.”
I. PROCEDURAL HISTORY AND FACTS
Brown was born on September 12, 1983 and was 35 years old at the time of the
administrative hearing held on June 8, 2020. (R. 36.)2 He finished the eleventh grade and

obtained a GED. (R. 49.) Brown has worked numerous short-term jobs with the last
positing being a security guard from 2007 to 2008. (R. 53-55.) On August 14, 2019,
Brown filed an application for SSI under Title XVI of the Social Security Act (“the Act”)
(42 U.S.C. § 1381, et seq.), alleging a disability onset date of January 1, 2015, due to
bipolar disorder and schizophrenia. (R. 28, 195.)

Brown’s claim was initially denied on October 3, 2019 (R. 87) and upon
reconsideration on November 6, 2019 (R. 100). Brown subsequently requested an
administrative hearing on November 26, 2019. (R. 114.) The hearing was held on June 8,
2020 via teleconference. (R. 42-77.) The Administrative Law Judge (“ALJ”) returned an
unfavorable decision on July 17, 2020 (R. 28-37), and Brown filed a Request for Review

of Hearing Decision on June 24, 2020 (R. 132-133). On November 9, 2020, the Appeals
Council denied Brown’s request for review (R. 1-4), and the hearing decision became the
final decision of the Commissioner.3 On December 1, 2020, Brown filed the instant action
seeking review of the Commissioner’s final decision. (Doc. No. 1.)

2 Citations to the administrative record are consistent with the transcript of administrative
proceedings filed in this case. (Doc. No. 21.)

3 “When, as in this case, the ALJ denies benefits and the [Appeals Council] denies review, [the
court] review[s] the ALJ's decision as the Commissioner's final decision.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citation omitted).
II. STANDARD OF REVIEW
Judicial review of disability claims is limited to whether the Commissioner's

decision is supported by substantial evidence and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
“The Commissioner's factual findings are conclusive” when “supported by substantial
evidence.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “Substantial
evidence” is more than a mere scintilla and is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc.

Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346,
1349 (11th Cir. 1997)). Even if the Commissioner's decision is not supported by a
preponderance of the evidence, the findings must be affirmed if they are supported by
substantial evidence. Id. at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The court may not find new facts, reweigh evidence, or substitute its own

judgment for that of the Commissioner. Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x
136, 139 (11th Cir. 2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004);
Dyer, 395 F.3d at 1210. However, the Commissioner's conclusions of law are not entitled
to the same deference as findings of fact and are reviewed de novo. Ingram v. Comm'r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

III. STANDARD FOR DETERMINING DISABILITY
An individual who files an application for SSI must prove that he is disabled. See
20 C.F.R. § 416.912(a). 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 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); 20

C.F.R. § 416.905(a).
Disability under the Act is determined by a five-step sequential evaluation process.
See 20 C.F.R. § 416.920(a). The evaluation is made at the hearing conducted by the ALJ.
See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). First, the
ALJ must determine whether the claimant is currently engaged in substantial gainful
activity. 20 C.F.R. § 416.920(a)(4)(i). “Substantial gainful activity” is work activity that

involves significant physical or mental activities. 20 C.F.R. § 416.972(a). If the ALJ finds
that the claimant is engaged in substantial gainful activity, the claimant cannot claim
disability. 20 C.F.R. § 416.920(b). Second, the ALJ must determine whether the claimant
has a medically determinable impairment or a combination of impairments that
significantly limit the claimant's ability to perform basic work activities. 20 C.F.R. §

416.920(c). Absent such impairment, the claimant may not claim disability. (Id.) Third,
the ALJ must determine whether the claimant meets or medically equals the criteria of an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§ 416.920(d),
416.925, and 416.926. If such criteria are met, then the claimant is declared disabled. 20
C.F.R. § 416.920(d).

If the claimant has failed to establish that he is disabled at the third step, the ALJ
may still find disability under the next two steps of the analysis. At the fourth step, the
ALJ must determine the claimant's residual functional capacity (“RFC”), which refers to
the claimant's ability to work despite his impairments. 20 C.F.R. § 416.920(e). The ALJ
must determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 416.920(f). If it is determined that the claimant is capable of performing past relevant

work, then the claimant is not disabled. 20 C.F.R. § 416.960(b)(3). If the ALJ finds that
the claimant is unable to perform past relevant work, then the analysis proceeds to the fifth
and final step. 20 C.F.R. § 416.920(g)(1). In this final analytical step, the ALJ must decide
whether the claimant is able to perform any other relevant work corresponding with his
RFC, age, education, and work experience. 20 C.F.R. § 416.960(c). Here, the burden of
proof shifts from the claimant to the ALJ in proving the existence of a significant number

of jobs in the national economy that the claimant can perform given his RFC, age,
education, and work experience. 20 C.F.R. §§ 416.920(g), 416.960(c).
In cases such as this one where the claimant filed an application for benefits after
March 17, 2017,4 the ALJ evaluates medical opinions according to (1) supportability; (2)
consistency; (3) the provider’s relationship with the claimant; (4) the provider’s

specialization; and (5) “other factors that tend to support or contradict a medical opinion
or prior administrative medical finding.” 20 C.F.R. § 416.920c(c)(1-5).
IV. ADMINISTRATIVE DECISION
Within the structure of the sequential evaluation process, the ALJ in this case found
that Brown has not engaged in substantial gainful activity since August 14, 2019, the

4 On January 18, 2017, the Commissioner published final rules titled “Revisions to Rules
Regarding the Evaluation of Medical Evidence.” 82 Fed. Reg. 5844. See Works v. Saul, No. 4:19-
cv-01515-MHH, 2021 WL 690126 (N.D. Ala. Feb 23, 2021) (discussing new framework for how
the Commissioner assesses medical evidence after March 27, 2017).
application date, and that he has the following severe impairments: psychotic disorder,
bipolar disorder, and attention deficit hyperactivity disorder (“ADHD”). (R. 30.) The ALJ

noted that there was no evidence of treatment for Brown’s polysubstance abuse which was
in remission as of September 2019. (R. 30.) The ALJ considered Brown’s mental
impairments under Listing 12.03 (Schizophrenic, Paranoid, and Other Psychotic
Disorders), Listing 12.04 (Depressive, Bipolar, and Related Disorders) and Listing 12.11
(Neurodevelopmental Disorders). (R. 30.) He found that Brown did not satisfy any of
these Listings.

After consideration of the entire record, the ALJ determined that Brown retains the
RFC to perform a full range of work at all exertion levels with the following non-exertional
limitations:
[Brown] must avoid unprotected heights and dangerous moving machinery.
He is limited to simple routine tasks, but not at a production rate pace. [He]
is limited to occupations requiring no more than simple work related
decisions with no more than occasional changes in the work setting. He is
limited to occasional interaction with supervisors, coworkers, and the public.
(R. 33.) The ALJ determined that transferability of job skills is not an issue because Brown
has no past relevant work. (R. 36.) In addition, considering Brown’s age, education, work
experience, and RFC, the ALJ found that there are jobs that exist in significant numbers in
the national economy that he can perform. (R. 36.) The ALJ concluded that Brown had
not been under a disability, as defined in the Social Security Act, since August 14, 2019,
the date the application was filed. (R. 37.) The ALJ found that based on the application
for SSI filed on August 14, 2019, Brown is not disabled under section 1614(a)(3)(A) of the
Social Security Act (42 U.S.C. § 1382c(a)(3)(A)). (Id.)
V. DISCUSSION
Brown argues on appeal that the ALJ erred in finding that his mental impairments

do not meet or medically equal the criteria of Listing 12.03. (Doc. No. 17 at 6.) The
Commissioner responds that the ALJ properly evaluated Brown’s mental impairments
under the Listing and that Brown failed to prove that he is disabled within the meaning of
the Social Security Act. (Doc. No. 20 at 3-4.) The Court addresses this issue below.
The Listing of Impairments in the Social Security regulations describes conditions
that are so severe as to prevent a person from performing any gainful activity. See § 20

C.F.R. pt. 404, Subpt. P, App. 1; Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002).
A claimant bears the burden of proving that he has an impairment that meets a listing. 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. To ‘equal’ a Listing, the medical findings must be ‘at least equal in severity
and duration to the listed findings.” Wilson, 284 F.3d at 1224 (internal citation omitted).
The medical findings presented by the claimant must satisfy all of the criteria of a particular
listing and “[a]n impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). If a claimant

can meet a listed impairment or otherwise establish an equivalence, then a claimant is
presumptively determined to be disabled and the ALJ's sequential evaluation of a claim
ends. Edwards v. Heckler, 736 F.2d 625, 626 (11th Cir. 1984).
The criteria for Listing 12.03 are:
12.03 Schizophrenia spectrum and other psychotic disorders (see 12.00B2),
satisfied by A and B, or A and C:

A. Medical documentation of one or more of the following:

1. Delusions or hallucinations;
2. Disorganized thinking (speech); or
3. Grossly disorganized behavior or catatonia.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas
of mental functioning (see 12.00F):

1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent;” that
is, you have a medically documented history of the existence of the disorder
over a period of at least 2 years, and there is evidence of both:

1. Medical treatment, mental health therapy, psychosocial
support(s), or a highly structured setting(s) that is ongoing and
that diminishes the symptoms and signs of your mental
disorder (see 12.00G2b); and

2. Marginal adjustment, that is, you have minimal capacity to
adapt to changes in your environment or to demands that are
not already part of your daily life (see 12.00G2c).

20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.03. Thus, for Brown to show that he met Listing
12.03, he must show his impairments met either (1) Paragraphs A and B, or (2) Paragraphs
A and C. Id. § 12.00A2.
In this case, the ALJ set forth the criteria for Paragraph A of Listing 12.03 but did
not state a finding as to whether Brown satisfied the criteria. (R. 30-31.) Rather, the ALJ
addressed the criteria for Paragraph B and Paragraph C of Listing 12.03 and concluded that
Brown did not satisfy those criteria. The ALJ found that Brown was not markedly impaired

in two, or extremely impaired in one, of the four areas of functioning assessed under
Paragraph B of Listing 12.03. (R. 31.) The ALJ assessed Brown’s abilities as follows:
(1) understand, remember or apply information – moderately impaired;
(2) interact with others – moderately impaired;
(3) concentrate, persist, or maintain pace – moderately impaired;
(4) adapt or manage himself – mildly impaired.

(R. 31-32.) Finally, the ALJ found that the evidence failed to satisfy Paragraph C of Listing
12.03 because
there is no medically documented history of a chronic affective disorder of
at least two years duration and repeated episodes of decompensation; or a
residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands would cause decompensation; or
a history of being unable to function outside a highly supportive living
arrangement. There is no medically documented history of anxiety resulting
in complete inability to function independently outside the area of one’s
home.

(R. 32-33.) Given his findings as to why Brown did not satisfy Paragraphs B or C of Listing
12.03, the ALJ concluded that Brown’s impairments do not meet or medically equal the
severity of Listing 12.03 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
416.920(d), 416.925, and 416.926). (R. 30.)
In evaluating the medical evidence of record, the ALJ noted that the record showed
a “longstanding history of multiple psychiatric diagnoses including psychotic disorder,
bipolar disorder and ADHD.” (R. 34.) The ALJ further noted however that the diagnoses
“involve significant overlap in terms of the associated symptoms and functional
limitations,” and it was “unclear as to the extent to which each of these specific diagnoses
causes or contributes to [Brown’s] mental functional limitations . . . .” (R. 34-35.) The
ALJ determined that, while Brown’s impairments imposed functional limitations, the

medical evidence did not establish greater limitations that were inconsistent with his RFC
determination. (R. 35.) The ALJ found the opinion evidence from State agency
psychological consultants Robert Estock, M.D. (initial application, R. 78-87) and Leslie
Rodrigues, Ph.D. (reconsideration stage, R. 89-100) to be both persuasive and supported
by detailed explanations and consistent with the medical evidence of record. (R. 35.)
The ALJ evaluated Brown’s medical evidence of record pursuant to 20 C.F.R. §

416.929 and SSR 16-3p, as well as § 416.920c. (R. 33.) He found that Brown’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms
underlying his claim of disability, but that Brown’s statements regarding the intensity,
persistence and limiting effects were not entirely consistent with the medical evidence and
other evidence in the record. (R. 34.) The record contained evidence of Brown’s diagnosis

of unspecified psychosis and bipolar mood disorder with auditory/visual hallucination that
affect his ability to focus, drug use prior to July 2019, social isolation due to having anxiety
around other people, termination from his job as a security guard and primary activity of
watching television. (R. 34, 53-60, 213, 410, 499.) Brown said that he was successful at
his security guard job because he did not have to interact with others until he was fired for

arguing with his supervisor. (R. 53-54.) The ALJ heard testimony from Brown’s father,
John Brown, with whom Brown has lived his entire life. (R. 63.) The elder Brown testified
that his son’s mental problems began in school and were the reason he could not maintain
employment. (R. 63-65.)
Testimony showed that Brown’s mental illnesses also caused violent behaviors in
the past which led his father to have him involuntarily committed four times between 2016

and 2019. (R. 65-68; 150-83.) Brown’s father helps Brown shave because he is afraid for
Brown to have any sharp objects and believes that Brown would kill someone if allowed
to live independently. (R. 68-69.) The Third-Party Function Report completed by Brown’s
father describes how he reminds his son to take his medicine and repeats instructions for
performing chores. (R. 207-08.) In-patient treatment records from Brown’s fourth
involuntary commitment in July 2019 showed improvement, as his mood was euthymic

and he denied hallucinations, suicidal/homicidal ideations and delusions. (R. 572-78.)
The ALJ considered Brown’s activities of daily living, including walking with his
father, household/yard chores with supervision by his father, shopping for food, preparing
frozen dinners and watching television. (R. 35, 210, 215-17.) Hearing testimony that
Brown could not engage in sustained work because of mental limitations was rejected

based upon the ALJ’s finding that treatment records did not support the claimed intensity
or persistence of Brown’s subjective allegations. (R. 36.) The ALJ determined that,
despite some limitation by his impairments, Brown is “capable of doing a range of
unskilled work on a sustained and continuous basis.” (R. 36.)
A. Paragraph A Criteria

Brown contends that he meets the Paragraph A criteria for Listing 12.03 because he
suffers from delusions and hallucinations and provided testimony of the same. (Doc. No.
17 at 7.) Brown asserts that his testimony was supported by his father’s testimony and his
medical records, but he fails to identify which specific medical records upon which he
relies. (Id.) The Commissioner argues that the hearing testimony cited by Brown cannot
serve as evidence under Paragraph A because medical documentation of delusions or

hallucinations is required. (Doc. No. 20 at 6.)
The ALJ decision does not provide a finding as to whether Brown met the Paragraph
A criteria for Listing 12.03, perhaps because it must exist in combination with the
Paragraph B or Paragraph C criteria to satisfy the Listing. (R. 30-31.) Nonetheless, such
omission by the ALJ does not require reversal. See Bellew v. Acting Comm’r of Soc. Sec.,
605 F. App’x 917, 920 (11th Cir. 2015) (An ALJ’s finding that a claimant does not meet a

listed impairment may be implied from the record.); Flemming v. Comm’r of the Soc. Sec.
Admin., 635 F. App’x 673, 676 (11th Cir. 2015).
The ALJ discussed Brown’s medical records documenting his denial of
hallucinations and delusions during his last hospitalization, in contrast to the hearing
testimony that he experiences hallucinations on a daily basis. (R. 34, 35, 56-58, 572-78.)

Therefore, the Court finds substantial evidence to support the ALJ’s implicit finding.
Reversal is not warranted on this ground.
B. Paragraph B Criteria
As for the Paragraph B criteria for Listing 12.03, Brown challenges the ALJ’s
finding that he is only moderately limited in the two domains of interacting with others and

ability to adapt or manage himself. (Doc. No. 17 at 7.) Brown asserts that he has never
married, has no children, does not like to be around people and cannot hold a job because
he cannot get along with supervisors and co-workers. (Id.) Brown contends that those
facts coupled with his living arrangements with his father and inability to live
independently establish his inability to adapt or manage himself. (Id.)

As to the domain of interacting with others, the ALJ adopted the conclusions by Dr.
Estock and Dr. Rodrigues that Brown was moderately limited in his interactions with
others. (R. 82, 95.) The ALJ considered Brown’s violence against his father in the past
and preference for solitude. (R. 31, 60, 66-67.) However, Brown’s updated mental health
records showed that he made good eye contact and had normal speech with a mood ranging
between good with an anxious affect to euthymic. (R. 31, 609, 611, 635, 641.)

As to the domain of adapting or managing oneself, Dr. Estock found that Brown
was moderately limited while Dr. Rodrigues found only a mild limitation. (R. 82, 95.) The
ALJ determined that Brown has a mild limitation in this area and cited individual therapy
records from October 2019 indicating that he was compliant with his medications with no
reported side effects, was sleeping well, not engaging in substance abuse and getting along

with his father. (R. 32, 643.)
Upon review of the record, the Court finds that substantial evidence supports the
ALJ’s decision, and the ALJ reviewed the pertinent evidence and adequately addressed the
evidence related to the Paragraph B criteria. Brown does not address how the ALJ erred
by adopting the medical opinions of Drs. Estock and Rodrigues or how those opinions were

not supported by the record. Consequently, the Court finds that the ALJ did not err in
finding that Brown did not meet the criteria of Paragraph B.
C. Paragraph C Criteria
Brown argues that he satisfied the criteria of Paragraph C of Listing 12.03 because

he “has a medically documented history of the existence of a disorder over a period of at
least two years” and there is evidence of “medical treatment, mental health therapy,
psychosocial support, or a highly structured setting that . . . diminishes the symptoms and
signs of his mental disorder.” (Doc. No. 17 at 8.) He further argues “there has been
marginal adjustment.” (Id.)
The ALJ considered the Paragraph C criteria in Brown’s case but specifically found

no
medically documented history of a chronic affective disorder of at least two
years duration and repeated episodes of decompensation; or a residual
disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands would cause decompensation; or a
history of being unable to function outside a highly supportive living
arrangement. There is no medically documented history of anxiety resulting
in complete inability to function independently outside the area of one’s
home.

(R. 32-33.)
“To ‘equal’ a Listing, the medical findings must be ‘at least equal in severity and
duration to the listed findings.” Wilson, 284 F.3d at 1224. The Court notes that the ALJ
applied 20 C.F.R. § 416.926, the regulation governing consideration of medical
equivalence, to his decision-making process. (R. 30.) The hearing decision reflects that
the ALJ considered evidence of Brown’s symptoms for equivalency under Listing 12.03.
See Gardner v. Comm’r of Soc. Sec, Case No.: 2:20-cv-331-MRM, 2021 WL 3674305, at
*5 (M.D. Fla. Aug. 19, 2021) (quoting the Eleventh Circuit’s holding in Flemming, 635 F.
App’x at 676, that an ALJ’s failure to discuss Listing 12.03 does not mean the listing was
not considered where the decision otherwise reflects consideration of the plaintiffs
psychotic symptoms).
The Court finds that the ALJ evaluated and weighed the evidence before him for
listing equivalency and that Brown has not provided grounds to question his decision.
Gardner, 2021 WL 3674305, at *10. “The Commissioner's factual findings are
conclusive” when “supported by substantial evidence.” Doughty, 245 F.3d at 1278. The
Court finds that the ALJ decision is supported by substantial evidence and that Brown has
failed to demonstrate otherwise.
VI. CONCLUSION
After review of the administrative record, and considering Brown’s arguments, the
Court finds the Commissioner’s decision is supported by substantial evidence and is in
accordance with applicable law. Accordingly, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED.
A separate judgment will be issued.
DONE this 27th day of May, 2022.

ITED STATES MAGISTRATE JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987809. Public record. Not legal advice.