Bitowf v. Saul, No. 1:2019cv00845 - Document 23 (S.D. Ala. 2021)
Court Description: MEMORANDUM OPINION AND ORDER: The Court finds that the Commissioner's final decision denying Bitowf's application for benefits is due to be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 3/29/2021. (tgw)
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Bitowf v. Saul Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION STEVE C. BITOWF, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:19-00845-N MEMORANDUM OPINION AND ORDER Plaintiff Steve C. Bitowf brought this action under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Defendant Commissioner of Social Security denying his application for a period of disability and disability insurance benefits (collectively, “DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq.1 Upon due consideration of the parties’ briefs (Docs. 14, 16) and those portions of the transcript of the administrative record (Doc. 12) relevant to the issues raised, and with the benefit of oral argument, the Court finds that the Commissioner’s final decision is due to be AFFIRMED.2 “Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability.” Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987) (citing 42 U.S.C. § 423(a)(1)(D) (1982 ed., Supp. III)). 1 With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 20, 21). 2 Dockets.Justia.com I. Procedural Background Bitowf filed the subject DIB application with the Social Security Administration (“SSA”) on August 23, 2016. After it was initially denied, Bitowf requested, and on July 23, 2018, received, a hearing on his application with an Administrative Law Judge (“ALJ”) of the SSA’s Office of Disability Adjudication and Review. On December 24, 2018, the ALJ issued an unfavorable decision on Bitowf’s application, finding him not entitled to benefits. (See Doc. 12, PageID.60-74). The Commissioner’s decision on Bitowf’s application became final when the Appeals Council for the Office of Disability Adjudication and Review denied his request for review of the ALJ’s unfavorable decision on September 16, 2019. (See id., PageID.48-53). Bitowf subsequently brought this action under § 405(g) for judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council.”). II. Standards of Review “In Social Security appeals, [the Court] must determine whether the Commissioner’s decision is supported by substantial evidence and based on proper legal standards.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotation omitted). The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135 S. Ct. 808, 815, 190 L. Ed. 2d 679 (2015). Under the substantialevidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence … is “more than a mere scintilla.” Ibid.; see, e.g., [Richardson v.] Perales, 402 U.S. [389,] 401, 91 S. Ct. 1420[, 28 L. Ed. 2d 842 (1971)] (internal quotation marks omitted). It means—and means only—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S. Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S. Ct. 1816, 144 L. Ed. 2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard). Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019). In reviewing the Commissioner’s factual findings, a court “ ‘may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the [Commissioner]’s factual findings, [the Court] must affirm if the decision reached is supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). Put another way, “[u]nder the substantial evidence standard, we cannot look at the evidence presented to [an administrative agency] to determine if interpretations of the evidence other than that made by the [agency] are possible. Rather, we review the evidence that was presented to determine if the findings made by the [agency] were unreasonable. To that end, [judicial] inquiry is highly deferential and we consider only whether there is substantial evidence for the findings made by the [agency], not whether there is substantial evidence for some other finding that could have been, but was not, made. That is, even if the evidence could support multiple conclusions, we must affirm the agency’s decision unless there is no reasonable basis for that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) (citations and quotation omitted).3 See also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam) (“The court need not determine whether it would have reached a different result based upon the record” because “[e]ven if we find that the evidence preponderates against the [Commissioner]'s decision, we must affirm if the decision is supported by substantial evidence.”); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (under the substantial evidence standard, “we do not reverse the [Commissioner] even if this court, sitting as a finder of fact, would have reached a contrary result…”); Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (“In light of our deferential review, there is no inconsistency in finding that two successive ALJ decisions are supported by substantial evidence even when those decisions reach opposing conclusions. Faced with the same record, different ALJs could disagree with one another based on their respective credibility determinations and how each weighs the evidence. Both decisions could nonetheless be supported by evidence that reasonable minds would accept as adequate.”); Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991) (“Substantial evidence may even exist contrary to the findings of the ALJ, and we may have taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the findings cannot be overturned.”); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001) (“If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner.”). 3 “Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [A court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts.”).4 However, “district court judges are not required to ferret out delectable facts buried in a massive record,” Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings), and “ ‘[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it…’ ” Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (Fed. R. Civ. P. 56 motion for summary judgment) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)) (ellipsis added). The Eleventh Circuit Court of Appeals, whose review of Social Security appeals “is the same as that of the district court[,]” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not fairly raised in the district court. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115-16 (11th Cir. 1994) (“As a general principle, [the court of appeals] will not address an argument that has not been raised in the district court…Because Stewart did not present any of his assertions in the district court, we decline to consider them on appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Crawford v. Comm'r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam) (same); Hunter v. Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 2016) (per curiam) (unpublished) (“As a general rule, we do not consider arguments that have not been fairly presented to a respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating as waived a challenge to the administrative law judge’s reliance on the testimony of a vocational expert that was ‘not raise[d] . . . before the administrative agency or the district court’).”); In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight 4 The “substantial evidence” “standard of review applies only to findings of fact. No similar presumption of validity attaches to the [Commissioner]’s conclusions of law, including determination of the proper standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the administrative denials of Social Security benefits dictates that ‘(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’ 42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential standard of review is applicable only to findings of fact made by the Secretary, and it is well established that no similar presumption of validity attaches to the Secretary’s conclusions of Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in Social Security appeal); Sorter v. Soc. Sec. Admin., Comm'r, 773 F. App'x 1070, 1073 (11th Cir. 2019) (per curiam) (unpublished) (“Sorter has abandoned on appeal the issue of whether the ALJ adequately considered her testimony regarding the side effects of her pain medication because her initial brief simply mentions the issue without providing any supporting argument. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79 (11th Cir. 2009) (explaining that ‘simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue’).”); Figuera v. Comm'r of Soc. Sec., 819 F. App'x 870, 871 n.1 (11th Cir. 2020) (per curiam) (unpublished) (“Figuera also argues the ALJ failed to properly assess her credibility … However, Figuera did not adequately raise this issue in her brief before the district court. She raised the issue only summarily, without any citations to the record or authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (noting that a party ‘abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority’). As a result, we do not address the sufficiency of the ALJ’s credibility finding.”). law, including determination of the proper standards to be applied in reviewing claims.” (some quotation marks omitted)). This Court “conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). “ ‘The [Commissioner]’s failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.’ ” Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). In sum, courts “review the Commissioner’s factual findings with deference and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo the legal principles upon which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to determine whether it is supported by substantial evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”). Moreover, an ALJ’s decision must “state with at least some measure of clarity the grounds for [the] decision.” Owens, 748 F.2d at 1516; Winschel, 631 F.3d at 1179. A court cannot “affirm simply because some rationale might have supported the [Commissioner]’ conclusion[,]” as “[s]uch an approach would not advance the ends of reasoned decision making.” Owens, 748 F.2d at 1516. Rather, “an agency’s order must be upheld, if at all, on the same basis articulated in the order by the agency itself.” Fed. Power Comm'n v. Texaco Inc., 417 U.S. 380, 397, 94 S. Ct. 2315, 41 L. Ed. 2d 141 (1974) (quotation omitted). See also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (“The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.”); Nance v. Soc. Sec. Admin., Comm'r, 781 F. App’x 912, 921 (11th Cir. 2019) (per curiam) (unpublished)5 (“Agency actions … must be upheld on the same bases articulated in the agency's order.” (citing Texaco Inc., 417 U.S. at 397, and Newton, 209 F.3d at 455)). Eligibility for DIB requires that a claimant be disabled, 42 U.S.C. § 423(a)(1)(E), meaning that the claimant is unable “to engage in any substantial gainful activity by reason of a 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). The Social Security Regulations outline a five-step, sequential evaluation process used to determine whether a claimant is disabled: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience. In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal Appendix are cited as persuasive authority.”). 5 Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).6 “These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). “In determining whether the claimant has satisfied this initial burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). “These factors must be considered both singly and in combination. Presence or absence of a single factor is not, in itself, conclusive.” Bloodsworth, 703 F.2d at 1240 (citations omitted). If, in Steps One through Four of the five-step evaluation, a claimant proves that he or she has a qualifying disability and cannot do his or her past relevant work, it then becomes the Commissioner’s burden, at Step Five, to prove that the claimant is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, although the “claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual steps of this five-step sequential evaluation. 6 the Commissioner of Social Security has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.” (citations omitted)). “This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted). If a court determines that the Commissioner reached his decision by focusing upon one aspect of the evidence and ignoring other parts of the record[, i]n such circumstances [the court] cannot properly find that the administrative decision is supported by substantial evidence. It is not enough to discover a piece of evidence which supports that decision, but to disregard other contrary evidence.” McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). Nevertheless, “ ‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision ... is not a broad rejection which is not enough to enable [a reviewing court] to conclude that the ALJ considered [the claimant's] medical condition as a whole.’ ” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) (quotation and brackets omitted)). When, as here, the ALJ denies benefits and the Appeals Council denies review of that decision, a court “review[s] the ALJ’s decision as the Commissioner’s final decision.” Doughty, 245 F.3d at 1278. But “when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262. Nevertheless, “when the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ’s decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). III. Summary of the ALJ’s Decision At Step One, the ALJ determined that Bitowf met the applicable insured status requirements through March 31, 2020, and had not engaged in substantial gainful activity since the alleged disability onset date of October 18, 2015.7 (Doc. 12, PageID.65). At Step Two, the ALJ determined that Bitowf had the following severe impairments: diabetes mellitus type II, diabetic neuropathy, obesity, hypertension, and carpal tunnel syndrome.8 (Doc. 12, PageID.65). The ALJ also found that Bitowf “For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she were insured.” Moore, 405 F.3d at 1211 (citing 42 U.S.C. § 423(a)(1)(A) (2005)). 7 “The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S. at 153. See also Schink v. Comm'r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir. 2019) (per 8 had the following medically determinable but non-severe mental impairments: gastroesophageal reflux disease, bilateral sensorineural hearing loss, sleep apnea, and hernia. (Id., PageID.65-66). At Step Three,9 the ALJ found that Bitowf did not have an impairment or combination of impairments that met or equaled the severity of a specified impairment in Appendix 1 of the Listing of Impairments, 20 C.F.R. § 404, Subpt. P, App. 1. (Doc. 12, PageID.66). At Step Four,10 the ALJ determined that Bitowf had the residual functional curiam) (Step Two “is a ‘threshold inquiry’ and ‘allows only claims based on the most trivial impairments to be rejected.’ ” (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)). “[A]n ‘impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.’ A claimant’s burden to establish a severe impairment at step two is only ‘mild.’ ” Schink, 935 F.3d at 1265 (citation omitted) (quoting McDaniel, 800 F.2d at 1031). Conversely to Step Two, Step Three “identif[ies] those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Yuckert, 482 U.S. at 153. 9 10 At Step Four, the ALJ must assess: (1) the claimant's residual functional capacity (“RFC”); and (2) the claimant's ability to return to her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the regulations define RFC as that which an individual is still able to do despite the limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a). Moreover, the ALJ will “assess and make a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence” in the case. 20 C.F.R. § 404.1520(e). Furthermore, the RFC determination is used both to determine whether the claimant: (1) can return to her past relevant work under the fourth step; and (2) can adjust to other work under the fifth step…20 C.F.R. § 404.1520(e). If the claimant can return to her past relevant work, the ALJ will capacity (RFC) “to perform light work as defined in 20 CFR 404.1567(b)[11] except that he could occasionally climb ladders, ropes, and scaffolds; frequently climb ramps and stairs; frequently handle or finger; must avoid even moderate exposure to extreme heat; must avoid concentrated exposure to extreme cold; and must avoid conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past relevant work, the ALJ moves on to step five. In determining whether [a claimant] can return to her past relevant work, the ALJ must determine the claimant's RFC using all relevant medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That is, the ALJ must determine if the claimant is limited to a particular work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the claimant’s RFC and determines that the claimant cannot return to her prior relevant work, the ALJ moves on to the fifth, and final, step. Phillips, 357 F.3d at 1238-39 (footnote omitted). “To determine the physical exertion requirements of different types of employment in the national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and very heavy. These terms are all defined in the regulations … Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4. The criteria for “light” work are as follows: 11 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). concentrated exposure to hazards in the workplace.” (Doc. 12, PageID.66-73). Based on the RFC and the testimony of a vocational expert,12 the ALJ determined that Bitowf was capable of performing past relevant work as a “safety inspector, manager truck transportation, police sergeant, and manager department” (Doc. 12, PageID.73-74), thus pretermitting the need to proceed to Step Five. Accordingly, the ALJ found that Bitowf was not disabled under the Social Security Act. (Id., PageID.74). IV. a. Analysis Medical Opinion Bitowf first argues that the ALJ erred by not giving substantial or considerable weight to the medical opinion of his treating physician, John McDuff, M.D. No reversible error has been shown.13 “A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy.” Phillips, 357 F.3d at 1240. 12 Bitowf characterizes his first claim of reversible error as follows: “The Administrative Law Judge committed reversible error in violation of Social Security Regulations 20 C.F.R. § 416.945, 20 C.F.R. § 404.1545, and Social Security Ruling 96-8p in that the Administrative Law Judge’s residual functional capacity determination at the fourth step of the sequential evaluation process was not supported by substantial evidence…” (Doc. 14, PageID.821-822). However, the only issue Bitowf substantively addresses in making this claim is the ALJ’s decision to reject Dr. McDuff’s medical opinion. Mere recitation of evidence in the administrative record and quotation of Social Security rules and regulations, without any attempt to apply law to facts, is insufficient to raise an issue for the Court’s consideration. See Walker v. Comm'r, Soc. Sec. Admin., 835 F. App'x 538, 542 n.1 (11th Cir. 2020) (per curiam) (unpublished) (“As the government notes, 13 “ ‘Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79 (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). “There are three tiers of medical opinion sources: (1) treating physicians; (2) nontreating, examining physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 2014) (per curiam) (unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions, the ALJ must consider a number of factors in determining how much weight to give to each medical opinion, including (1) whether the physician has examined the claimant; (2) the length, nature, and extent of a treating physician's relationship with the claimant; (3) the medical evidence and explanation supporting the physician’s opinion; (4) how consistent the physician’s opinion is with the record as a whole; and Walker’s argument on this issue consists of lengthy block quotes to caselaw without any attempt to apply the law to the facts of this case. He has thus abandoned the issue by failing to develop his arguments. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (‘A passing reference to an issue in a brief is not enough, and the failure to make arguments ... in support of an issue waives it.’).”). At oral argument, Bitowf also took some issue with the ALJ rejecting the medical opinion of another physician. However, because Bitowf did not raise that issue in his brief, he has waived consideration of it by the Court. See (Social Security Scheduling Order, Doc. 3, PageID.18 (requiring that the plaintiff’s brief “list[] the specific errors upon which plaintiff seeks reversal of the Commissioner's decision”)); APA Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 2007) (court of appeals does “not consider claims not raised in a party's initial brief and made for the first time at oral argument”). (5) the physician’s specialization. These factors apply to both examining and nonexamining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 2014) (per curiam) (unpublished) (internal citations and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). While “the ALJ is not required to explicitly address each of those factors[,]” Lawton v. Comm'r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. 2011) (per curiam) (unpublished), “the ALJ must state with particularity the weight given to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.14 The opinions of non-treating physicians “are not entitled to deference...” McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam). Accord, e.g., Crawford, 363 F.3d at 1160 (“The ALJ correctly found that, because Hartig examined Crawford on only one occasion, her opinion was not entitled to great weight.”). On the other hand, “[t]he opinion of a treating physician…‘must be given substantial or considerable weight unless “good cause” is shown to the contrary.’ ” Phillips, 357 F.3d at 1240 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “Good cause exists ‘when the: (1) treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor's own medical On January 18, 2017, the SSA substantially revised the regulations governing how the Commissioner considers medical evidence, including medical opinions. See 82 Fed. Reg. 5844 (Jan. 18, 2017); 82 Fed. Reg. 15,132 (Mar. 27, 2017). However, those revisions apply only to claims filed on or after March 27, 2017, and are therefore inapplicable to the subject applications. Compare 20 C.F.R. § 404.1520c (applicable to claims filed on or after on or after March 27, 2017) with 20 C.F.R. § 404.1527 (applicable to claims filed before March 27, 2017). 14 records.’ With good cause, an ALJ may disregard a treating physician’s opinion, but he ‘must clearly articulate [the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240 (“[T]he opinion of a treating physician may be rejected when it is so brief and conclusory that it lacks persuasive weight or where it is unsubstantiated by any clinical or laboratory findings. Further, the [Commissioner] may reject the opinion of any physician when the evidence supports a contrary conclusion.” (citation omitted)); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) (“The treating physician’s report may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory.”). Failure to clearly articulate the reasons for giving less than substantial or considerable weight to the opinion of a treating physician “constitutes reversible error.” Lewis, 125 F.3d at 1440. Moreover, an ALJ “may not arbitrarily reject uncontroverted medical testimony[,]” Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982), or “substitute[] his judgment of the claimant’s condition for that of the medical and vocational experts.” Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (per curiam). “But ALJs are permitted, and in fact required, to use judgment in weighing competing evidence and reaching a final determination as to whether an applicant is disabled[,]” McCullars v. Comm'r, Soc. Sec. Admin., 825 F. App'x 685, 691 n.1 (11th Cir. 2020) (per curiam) (unpublished), and “if an ALJ articulates specific reasons for declining to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence, there is no reversible error.” Horowitz v. Comm'r of Soc. Sec., 688 F. App'x 855, 861 (11th Cir. 2017) (per curiam) (unpublished) (citing Moore, 405 F.3d at 1212). Accord Huigens v. Soc. Sec. Admin., Comm’r, 718 F. App’x 841, 844 (11th Cir. 2017) (per curiam) (unpublished). The ALJ gave Dr. McDuff’s opinions “little weight,” finding: They were not supported by his treatment notations or the remainder of the objective treatment record which has failed to support a conclusion that the claimant possesses totally debilitating symptoms from his medical conditions. The undersigned reiterates that notations of Dr. McDuff, while referencing the claimant’s diabetes mellitus with microalbuminuria and polyneuropathy, indicated that the claimant was not entirely compliant with the treatment plan and failed to document substantial physical examination abnormalities. Dr. McDuff referred the claimant to an endocrinologist, who noted the claimant’s non-compliance with treatment in certain treatment records … [A]dditionally[, t]reatment records with the Veterans Administration failed to support the opinions of Dr. McDuff in his evaluation and questionnaire. (Doc. 12, PageID.72). Thus, it is reasonably apparent that the ALJ found Dr. McDuff’s medical opinion was both inconsistent with his own treatment notes, and not otherwise bolstered by the evidence, both of which constitute “good cause” to reject a treating physician’s opinion. Bitowf largely fails to address the ALJ’s stated rationale for giving little weight to Dr. McDuff’s opinion, instead simply presenting his own summary of the record evidence and inviting the Court to draw the conclusion that “the longitudinal record” supports the opinion. However, a court may not decide the facts anew, reweigh the evidence, or substitute its judgment for the ALJ’s in considering the record evidence, Winschel, 631 F.3d at 1178, and an ALJ’s factual determinations, if supported by substantial evidence, must be upheld even if the evidence preponderates against them. Ingram, 496 F.3d at 1260. As the ALJ noted in his decision, Bitowf’s reported activities of daily living did not support a finding of completely disabling impairments. Bitowf and his wife reported that Bitowf walked and swam three times a week; played with his dog and grandchildren; did minor household repairs; shopped; traveled some; visited family; and went to restaurants, the movies, and sporting events. (Doc. 12, PageID.67). In discussing the treatment notes of record, the ALJ took note of Bitowf’s “lack of regular treatment” related to his diabetes, hypertension, and carpal tunnel syndrome, and largely mild findings at examinations. While the ALJ acknowledged occasional episodes of worsening symptoms in the record, the ALJ also noted that Bitowf was often non-compliant with his treatment regimen. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (per curiam) (refusal to follow prescribed medical treatment without a good reason will preclude a finding of disability (citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)). The ALJ cited substantial evidence in support of his decision to discount Dr. McDuff’s opinions; Bitowf’s challenge to that decision is at most an invitation to have the Court impermissibly reweight the evidence and second-guess the ALJ. However, a court “will not second guess the ALJ about the weight the treating physician’s opinion deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015) (citing Moore, 405 F.3d at 1212). Accordingly, Bitowf has failed to show reversible error in the ALJ’s consideration of Dr. McDuff’s medical opinion.15 b. Social Security Ruling 82-62 Bitowf next argues that the ALJ reversibly erred by failing to discuss the physical and mental demands of Bitowf’s past relevant work as required by Social Security Ruling (SSR) 82-62, 1982 WL 31386 (1982).16 SSR 82-62 states, in relevant part: The rationale for a disability decision must be written so that a clear picture of the case can be obtained. The rationale must follow an orderly pattern and show clearly how specific evidence leads to a conclusion. Bitowf argues that the evidence of record, “combined with Dr. McDuff’s opinion reasonably supports a finding that Plaintiff, at best, can perform a range of sedentary, unskilled work…” (Doc. 14, PageID.828). As the Court has found, Bitowf has failed to show that the ALJ erred in rejecting Dr. McDuff’s opinion. And more generally, the Court’s concern is only “whether there is substantial evidence for the findings made by the [ALJ], not whether there is substantial evidence for some other finding that could have been, but was not, made.” Adefemi, 386 F.3d at 1029 (quotation omitted). Even if Bitowf is correct that the record could support a finding of a range of sedentary, unskilled work, that does not, in itself, render the ALJ’s decision erroneous or unreasonable. As the Eleventh Circuit has recognized, “[f]aced with the same record, different ALJs could disagree with one another based on their respective credibility determinations and how each weighs the evidence. Both decisions could nonetheless be supported by evidence that reasonable minds would accept as adequate.” Hunter, 808 F.3d at 822. 15 “Social Security Rulings are agency rulings published under the Commissioner's authority and are binding on all components of the Administration. Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed. 2d 967 (1990). Even though the rulings are not binding on [federal courts], [they are] nonetheless accord[ed] great respect and deference, if the underlying statute is unclear and the legislative history offers no guidance. B. ex rel. B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981).” Klawinski v. Comm'r of Soc. Sec., 391 F. App'x 772, 775 (11th Cir. 2010) (per curiam) (unpublished). Additionally, courts “require the agency to follow its regulations “where failure to enforce such regulations would adversely affect substantive rights of individuals.” Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1361 (11th Cir. 2018) (quotations omitted). 16 The file will contain all the pertinent information with respect to the medical aspects of the case as well as the nonmedical facts. The explanation of the decision must describe the weight attributed to the pertinent medical and nonmedical factors in the case and reconcile any significant inconsistencies. Reasonable inferences may be drawn, but presumptions, speculations and suppositions must not be used. A decision that an individual is not disabled, if based on sections 404.1520(e) and 416.920(e) of the regulations, must contain adequate rationale and findings dealing with all of the first four steps in the sequential evaluation process. In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact: 1. A finding of fact as to the individual's RFC. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation. SSR 82-62, 1982 WL 31386, at *4. As the Commissioner correctly points out, the Social Security regulations permit ALJs to rely on “vocational experts or vocational specialists, or other resources, such as the ‘Dictionary of Occupational Titles’ and its companion volumes and supplements, published by the Department of Labor, to obtain evidence … to … determine whether” claimants can perform past relevant work, and recognize that a “vocational expert or specialist may offer relevant evidence within his or her expertise or knowledge concerning the physical and mental demands of a claimant’s past relevant work, either as the claimant actually performed it or as generally performed in the national economy.” 20 C.F.R. § 404.1560(b)(2). Here, the ALJ relied on the testimony of a vocational expert in determining that Bitowf could perform past relevant work. Bitowf claims that, at the ALJ hearing, “the vocational expert was not able to pinpoint exact matches for [Bitowf]’s past relevant work in the Dictionary of Occupational Titles. He testified that the jobs were difficult to identify and he did the best he could to find a similar counterpart in the Dictionary of Occupational Titles.” (Doc. 14, PageID.830). Bitowf argues that, “[g]iven the vocational expert’s testimony that he was unable to specifically identify the Plaintiff’s past relevant work, it was incumbent upon the Administrative Law Judge to discuss the specific mental and physical requirements of these jobs.” (Id.). The undersigned disagrees. While the Commissioner concedes that the vocational expert “struggled to find exact matches in the DOT for some of [Bitowf]’s past work” (Doc. 16, PageID.846), he also correctly points out that the vocational expert testified with sufficient certainty about the position of police sergeant, admitting his familiarity with the position from having handled a city’s worker’s compensation claims for 30 years. (Doc. 12-1, PageID.814). Moreover, the Commissioner correctly points out that the Dictionary of Occupational Titles contains a specific description of the duties required for the position of “police sergeant,” see DICOT § 375.133-010, 1991 WL 673119, to which the ALJ cited in his decision (see Doc. 12, PageID.73). Accordingly, the ALJ made sufficiently specific findings of fact regarding the physical and mental demands of the police sergeant position. And because the ability to perform any past relevant work precludes a finding of disability, any error caused by the vocational expert’s uncertainty regarding other past relevant work is harmless. See 20 C.F.R. § 404.1560(b)(3) (“If we find that you have the residual functional capacity to do your past relevant work, we will determine that you can still do your past work and are not disabled. We will not consider … whether your past relevant work exists in significant numbers in the national economy.”). c. Composite Job Bitowf’s third and final claim of reversible error is that the ALJ failed to recognize that Bitowf’s past relevant work consisted of “composite jobs.” No reversible error has been shown in this regard. Generally, a claimant is not disabled if he or she can perform past relevant work, “either as the claimant actually performed it or as generally performed in the national economy.” 20 C.F.R. § 404.1560(b)(2). However, if past relevant work is considered a “composite job,” then the ALJ may not apply the “as generally performed in the national economy” prong at Step 4, and must instead determine if the claimant “can perform all parts of the job” as the claimant performed it. POMS DI 25005.020(B).17 See also Smith v. Comm'r of Soc. Sec., 743 F. App'x 951, 954 “The Social Security Administration’s POMS is the publicly available operating instructions for processing Social Security claims. Wash. State Dep't of Soc. & Health Servs. v. Keffeler, 537 U.S. 371, 385, 123 S. Ct. 1017, 154 L. Ed.2d 972 (2003). While the ‘administrative interpretations’ contained within the POMS ‘are not products of formal rulemaking, they nevertheless warrant respect.’ Id.; see Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003) (‘While the POMS does not have the force of law, it can be persuasive.’).” Smith v. Comm'r of Soc. Sec., 743 F. 17 (11th Cir. 2018) (per curiam) (unpublished) (“When the claimant’s previous work qualifies as a composite job, the ALJ must consider the particular facts of the individual case to consider whether the claimant can perform his previous work as actually performed. See SSR 82-61 at *2.”). As the Commissioner has recognized, “composite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT.” Id.; SSR 82-61, 1982 WL 31387, at *2 (1982). Past relevant work “may be a composite job if it takes multiple DOT occupations to locate the main duties of the [past relevant work] as described by the claimant.” POMS DI 25005.020(B). Generally, it is the claimant’s burden to show that past relevant work was a “composite job.” See Smith, 743 F. App'x at 954 (“[T]o establish that his position was a composite job, Smith had to prove that hanging rent notices was one of the ‘main duties’ of his position with the property management company. POMS DI 25005.020; see SSR 82-61 (requiring that a composite job has ‘significant elements of two or more occupations’).”). The DOT describes the position of “police sergeant” as requiring “[e]xerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects.” DICOT § 375.133-010, 1991 WL 673119. This is consistent with the ALJ’s restriction of the RFC to light work with no additional strength limitations. See 20 App'x 951, 954 n.* (11th Cir. 2018) (per curiam) (unpublished). C.F.R. § 404.1567(b). As the Commissioner correctly points out, Bitowf’s claim that his past relevant work qualifies as “composite jobs” is premised entirely on his testimony that he had to lift at least 50 pounds for each of his past job, “meaning that he performed these jobs at the medium level of exertion.” (Doc. 14, PageID.832). However, Bitowf has pointed to no record evidence indicating that lifting over 50 pounds was one of his main duties as a police sergeant, nor has he pointed to any other occupation listed in the DOT that he contends he was performing when he did so. See Smith, 743 F. App'x at 954 (“Smith … contends that the position qualifies as a composite job because he was required to hang rent notices, which is a duty beyond the usual responsibilities of a telephone clerk. Although Smith bore the burden of proof on this issue, he introduced no evidence about how much time he spent hanging rent notices or otherwise establishing that this duty was a significant element of the job. Furthermore, Smith has not identified what other occupation listed in the DOT he contends that he was performing when he hung the rent notices. See POMS DI 25005.020. We thus conclude that the ALJ did not err in concluding that Smith’s past work with the property management company was not a composite job.”). To allow past relevant work to be classified as a “composite job” based on any difference between the DOT’s description and a claimant’s actual description of his duties would effectively swallow the rule that a claimant is not disabled if he can perform past relevant work as that work is “generally performed in the national economy[,]” even if he can no longer perform it as he actually performed it. 20 C.F.R. § 404.1560(b)(2). In considering whether a claimant can return to past work, the ALJ must (1) consider all the duties of the past relevant work and (2) evaluate the claimant's ability to perform the duties in light of his impairments. Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990). The claimant must show that he can no longer “perform his past kind of work, not that he merely [is] unable to perform a specific job he held in the past.” Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986) (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986) ). Smith, 743 F. App'x at 953. Here, Bitowf appears to be making an argument similar to one rejected in Smith, which noted: Our decision in Jackson illustrates the distinction between the duties generally involved in a type of work and those required in a specific job. In Jackson, the claimant, who previously had worked as a belt operator in a pipe manufacturing factory, asserted that he was unable to return to his past work because he could no longer climb and descend stairs as required in the job that he had held. Id. at 1293-94. We held that the claimant failed to show that he was unable to return to his previous type of work because there was no evidence that belt operator jobs generally required a worker to climb and descend stairs. Id. Under Jackson, when a claimant's prior job involved functional demands and duties significantly in excess of those generally required for that type of work by employers in the national economy, it is not enough for the claimant to show that he cannot perform the demands and duties actually involved in the job. Instead, he must show that he cannot perform the functional demands and job duties of the position generally required by employers nationwide. See id.; SSR 82-61, 1982 WL 31387 (Jan. 1, 1982). Id. at 953–54. Because Bitowf has failed to meet his burden of showing that his past relevant work as a police sergeant qualifies as a “composite job,” the ALJ did not err in finding that he could perform that past relevant work as generally performed in the national economy. No reversible error having been shown, the Court finds that the Commissioner’s final decision denying Bitowf’s application for benefits is therefore due to be AFFIRMED. V. Conclusion In accordance with the foregoing analysis, it is ORDERED that the Commissioner’s final decision denying Bitowf’s August 23, 2016 DIB application is AFFIRMED under sentence four of 42 U.S.C. § 405(g). Final judgment shall issue separately in accordance with this order and Federal Rule of Civil Procedure 58. DONE and ORDERED this the 29th day of March 2021. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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