Wayne Land, Jr. v. Commissioner of Social Security

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 8, 2021
• Docket: 20-11977
• Status: Unpublished

Opinion

USCA11 Case: 20-11977 Date Filed: 01/08/2021 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11977 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cv-00792-NPM

WAYNE LAND, JR.,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 8, 2021) USCA11 Case: 20-11977 Date Filed: 01/08/2021 Page: 2 of 8

Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Wayne Land appeals the district court’s order affirming the Social Security

Administration’s (“SSA”) partially favorable decision granting him disability

insurance benefits (“DIB”) and supplemental security income (“SSI”), pursuant to

42 U.S.C. § 405(g). Land argues that the administrative law judge (“ALJ”) failed to

comply with Social Security Ruling 83-20 (“SSR 83-20”), see SSR 83-20,

1983-1991 Soc. Sec. Rep. Serv. 49 (Jan. 1, 1983), when the ALJ determined that he

became disabled on September 23, 2016, rather than on an earlier date. 1 Land asserts

that, because the record was ambiguous and required an inference as to when his

avascular necrosis condition became severe and rendered him disabled, SSR 83-20

required the ALJ to call a medical advisor to testify at the disability hearing. Land

further asserts that substantial evidence showed that he was disabled before

September 23, 2016.

We review de novo the legal principles upon which the ALJ’s decision is

based, but the ALJ’s factual findings are conclusive if supported by substantial

evidence. Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1358 (11th Cir. 2018);

1 SSR 83-20 was rescinded by Social Security Ruling 18-01p (“SSR 18-01p”) on October 2, 2018. SSR 18-01p, 83 Fed. Reg. 49613, 49613 (Oct. 2, 2018). However, because SSR 18-01p does not apply retroactively and the ALJ rendered her decision on February 5, 2018, SSR 83-20 applies. See id. at 49616. 2 USCA11 Case: 20-11977 Date Filed: 01/08/2021 Page: 3 of 8

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Additionally, we review

de novo the district court’s determination as to whether the ALJ’s decision was

supported by substantial evidence. Wilson, 284 F.3d at 1221. “Substantial evidence

is more than a 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 1436, 1439

(11th Cir. 1997)). We will deem the Commissioner’s decision supported by

substantial evidence even if the preponderance of the evidence weighs against it. Id.

at 1158–59. However, we will not “affirm simply because some rationale might

have supported the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516

(11th Cir. 1984). Moreover, an ALJ’s decision is not supported by substantial

evidence if she reached it by “focusing upon one aspect of the evidence and ignoring

other parts of the record.” McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986)

(reversing the denial of an application for SSI where the ALJ ignored objective

medical evidence regarding the applicant’s physical condition and disregarded the

vocational expert’s testimony). And we will not decide the facts anew, make

credibility determinations, or reweigh the evidence. Winschel v. Comm’r of Soc.

Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

The ALJ has a duty to develop a full and fair record whether or not the

claimant is represented by counsel, although we have stated that the ALJ has “a

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special duty when an unrepresented claimant unfamiliar with hearing procedures

appears before [her].” Cowart v. Schweiker, 662 F.2d 731, 735–37 (11th Cir. 1981)

(quoting Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981)) (determining that

the ALJ failed to adequately develop the record where he did not ask the pro se

claimant’s husband any questions about the claimant’s condition, elicit testimony or

make findings regarding adverse effects of the claimant’s prescribed medications,

discuss the jobs that the claimant was capable of performing, or specify what weight

he gave each piece of evidence). This duty requires the ALJ to “scrupulously and

conscientiously probe into, inquire of, and explore for all relevant facts.” Henry v.

Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Cowart, 662

F.2d at 735). In addition, “the ALJ must state with particularity the weight given to

different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.

In determining whether it is necessary to remand a case for development of

the record, we consider “whether the record reveals evidentiary gaps which result in

unfairness or ‘clear prejudice.’” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)

(quoting Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982)). Accordingly, a

claimant must show that she was prejudiced in order to prevail on a claim that the

record was inadequately developed. Id.

An individual seeking SSI must prove that she is disabled. Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005). In order to determine whether a claimant is

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disabled, the ALJ applies a five-step sequential analysis. See 20 C.F.R.

§§ 404.1520, 416.920. This process includes an analysis of whether the claimant:

(1) is unable to engage in substantial gainful activity; (2) has a severe medically

determinable physical or mental impairment; (3) has such an impairment that meets

or equals a listed impairment and meets the duration requirements; (4) can perform

her past relevant work, in light of her residual functional capacity (“RFC”); and (5)

can make an adjustment to other work, in light of her RFC, age, education, and work

experience. Id. §§ 404.1520(a)(4), 416.920(a)(4).

The second step of the sequential analysis requires the ALJ to consider, as a

threshold matter, “the medical severity of [the claimant’s] impairment(s).” Schink

v. Comm’r of Soc. Sec., 935 F.3d 1245, 1264-65 (11th Cir. 2019) (alteration in

original) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)). An

impairment or combination of impairments is not severe if it does not significantly

limit the claimant’s ability to perform “basic work activities,” which include

walking, standing, sitting, lifting, pushing, and pulling. Id. at 1265 (quoting 20

C.F.R. § 404.1522(a)). “[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.’” Id. (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.

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1986)). Although the claimant bears the burden to establish that an impairment is

severe, that burden is “mild.” Id. (quoting McDaniel, 800 F.2d at 1031).

In determining whether a claimant is disabled, the ALJ considers all

symptoms, including pain, and the extent to which those symptoms are reasonably

consistent with objective medical evidence. 20 C.F.R. §§ 404.1529(a)(1),

416.929(a)(1). Once a claimant establishes that his pain or other subjective

symptoms are disabling, “all evidence about the intensity, persistence, and

functionally limiting effects of pain or other symptoms must be considered in

addition to the medical signs and laboratory findings in deciding the issue of

disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). The ALJ will

also consider a number of other factors, including the claimant’s work history, his

daily activities, and treatment or other measures taken to alleviate pain or other

symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

Social security rulings are binding on the SSA. Noble v. Comm’r of Soc. Sec.,

963 F.3d 1317, 1324 n.12 (11th Cir. 2020). Although we are not bound by such

rulings, we afford them deference. Id. SSR 83-20 provides that, in addition to

determining whether the claimant is disabled, the ALJ must determine the onset date

of a claimant’s disability. SSR 83-20, 1983-1991 Soc. Sec. Rep. Serv. 49. It

explains that the ALJ should consider a claimant’s allegations, work history, and

medical and other evidence in making this determination. Id. It clarifies, however,

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that allegations and work stoppage are only significant if they are consistent with the

severity of the claimant’s condition as shown by the medical evidence, which

“serves as the primary element in the onset determination.” Id.

In a section titled “Onset in Disabilities of Nontraumatic Origin,” SSR 83-20

explains that, in the case of slowly progressing impairments where it is impossible

to obtain medical evidence regarding the precise onset date or where the alleged

onset date is far in the past, “it will be necessary to infer the onset date from the

medical and other evidence that describe the history and symptomatology of the

disease process.” Id. In a separate section titled “Precise Evidence Not Available—

Need for Inferences,” SSR 83-20 further explains that:

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the [ALJ] should call on the services of a medical advisor when onset must be inferred.

Id. The section then states that “[t]he available medical evidence should be

considered in view of the nature of the impairment” and that “[t]he onset date should

be set on the date when it is most reasonable to conclude from the evidence that the

impairment was sufficiently severe to prevent the individual from engaging in

[substantial gainful activity] for a continuous period of at least 12 months or result

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in death.” Id. As an example, the ruling provides a scenario involving a claimant

who alleged that he became unable to work on April 13, 1979, and submitted only

one piece of medical evidence, which was dated January 23, 1980, which required

the ALJ to infer an onset date based in part on information obtained from the

claimant’s employer and testimony from the claimant’s physician. Id.

Here, we find that the ALJ complied with SSR 83-20 and her decision was

supported by substantial evidence. SSR 83-20’s rule regarding the calling of a

medical advisor did not apply because the record included several years of medical

evidence documenting Land’s impairments and treatment leading up to September

23, 2016. Even if SSR 83-20’s rule applied, the ALJ was not required to call a

medical advisor because the record was adequately developed. Moreover,

substantial evidence supported the ALJ’s determination that Land’s avascular

necrosis became severe on September 23, 2016, even though it had been diagnosed

before that time. Accordingly, we affirm.

AFFIRMED.