Terry Alan Bellew v. Acting Commissioner of Social Security , 605 F. App'x 917 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13694
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-00083-JRH-BKE
TERRY ALAN BELLEW,
Plaintiff-Appellant,
versus
ACTING COMMISSIONER OF SOCIAL SECURITY,
SOCIAL SECURITY ADMINISTRATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 6, 2015)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Terry Alan Bellew appeals pro se from the district court’s order affirming
the Administrative Law Judge’s (“ALJ”) denial of his application for supplemental
security income (“SSI”) benefits under 42 U.S.C. § 1383(c)(3). On appeal, Mr.
Bellew argues the ALJ erred in determining that (1) his seizure disorder failed to
meet or equal the criteria of Listings of Impairment (“Listings”) 11.02 and 11.03
and (2) his mental disorders failed to meet or equal one of the listed impairments
under Listing 12.00. He further argues that the ALJ erred in determining that his
subjective complaints regarding his residual functional capacity (“RFC”) were not
fully credible. Next, Mr. Bellew challenges the ALJ’s finding that he could
perform jobs that existed in significant numbers in the national economy, arguing
that he could not perform any type of work given the behavior he exhibited during
his seizures and the danger he presented to others when having a seizure. Finally,
Mr. Bellew contends that the ALJ violated a duty to develop the record with Mr.
Bellew’s 2008-2009 medical records from the Georgia Department of Corrections
(“DOC”) and with videos showing his behavior during a seizure.
In a Social Security appeal, we must determine whether the ALJ’s decision
is supported by substantial evidence and based upon proper legal standards.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Substantial evidence is “more than a scintilla and is such relevant evidence as a
reasonable person would accept as sufficient to support a conclusion.” Id. (internal
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quotation marks omitted). We may not “decide the facts anew, reweigh the
evidence, or substitute our own judgment for that of the [ALJ].” Id. (internal
quotation marks omitted). Even if the evidence preponderates against the ALJ’s
factual findings, we must affirm if the decision reached is supported by substantial
evidence. Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (per curiam).
I.
To determine whether a Social Security claimant is disabled, the ALJ must
complete a five-step sequential evaluation process. Winschel, 631 F.3d at 1178;
see also 20 C.F.R. § 416.1520(a). The first three steps ask whether the claimant
(i) currently is engaged in substantial gainful activity and (ii) has a severe
impairment or combination of impairments (iii) that meets or equals the severity of
the specified impairments in the Listings. Winschel, 631 F.3d at 1178. The fourth
step asks whether, based on the RFC assessment, the claimant can perform any of
his past relevant work. Id. The final step asks whether there are significant
numbers of jobs in the national economy that the claimant can perform given his
RFC, age, education, and work experience. Id.The claimant has the burden of proving that his impairment meets or equals
a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). To
meet the requirements of a Listing, the claimant must have a diagnosis included in
the Listing and must provide medical reports documenting that the condition meets
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the Listing’s specific criteria and duration requirement. Wilson v. Barnhart,
284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam). An impairment – no matter
how severe – that meets only some of the Listing requirements does not qualify.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The ALJ’s finding as to whether a
claimant does or does not meet a listed impairment need not be explicit and may be
implied from the record. Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir.
1986) (holding that the ALJ implicitly found that the claimant did not meet a
Listing because it was clear from the record that the ALJ had considered the
relevant law and evidence). Furthermore, although the ALJ must consider the
Listings in making her disability determination, she is not required to recite
mechanically the evidence leading to her ultimate determination. Id.Listings 11.02 and 11.03 contain the criteria for disability based on epilepsy.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 11.02-11.03. Under either Listing, the
degree of impairment is determined by considering the type, frequency, and
duration of the claimant’s seizures, and both Listings require at least one detailed
description of a typical seizure. Id. § 11.00(A). The criteria under either Listing
may only be applied if the claimant’s impairment persists “despite the fact that the
individual is following prescribed antiepileptic treatment.” Id. “Determination of
blood levels of . . . antiepileptic drugs may serve to indicate whether the prescribed
medication is being taken.” Id.
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Listing 11.02, which contains the criteria for convulsive epilepsy, requires
documentation with a “detailed description of a typical seizure pattern, including
all associated phenomena; occurring more frequently than once a month, in spite of
at least 3 months of prescribed treatment.” Id. § 11.02. Additionally, the claimant
must demonstrate the existence of daytime episodes, during which he experiences
loss of consciousness and convulsive seizures, or nocturnal episodes “manifesting
residuals which interfere significantly with activity during the day.” Id.
§ 11.02(A)-(B). Listing 11.03, which addresses non-convulsive epilepsy, requires
detailed documentation of seizures that occur more frequently than once a week, in
spite of at least three months of prescribed treatment. Id. § 11.03. The claimant
must also show “alteration of awareness or loss of consciousness and transient
postictal manifestations of unconventional behavior or significant interference with
activity during the day.” Id.
A claimant’s refusal to follow prescribed medical treatment without a good
reason will preclude a finding of disability. 20 C.F.R. § 416.930(b). However,
“poverty excuses noncompliance,” such that noncompliance does not prevent a
claimant from receiving benefits where the noncompliance is a result of the
claimant’s inability to afford treatment. Dawkins v. Bowen, 848 F.2d 1211,
1212-14 (11th Cir. 1988) (reversing and remanding ALJ’s denial of benefits where
ALJ relied “primarily if not exclusively” on evidence concerning the claimant’s
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noncompliance with prescribed treatment, without regard to the claimant’s ability
to afford the treatment). Accordingly, “when an ALJ relies on noncompliance as
the sole ground for the denial of disability benefits, and the record contains
evidence showing that the claimant is financially unable to comply with prescribed
treatment, the ALJ is required to determine whether the claimant was able to afford
the prescribed treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.
2003) (per curiam). Where the ALJ did not rely significantly on the claimant’s
noncompliance, however, the ALJ’s failure to consider evidence regarding the
claimant’s ability to afford her prescribed treatment does not constitute reversible
error. Id.II.
A.
On appeal, Mr. Bellew appears to argue that his seizure disorder met Listing
11.02, as his seizures were convulsive, grand mal seizures. After stating that his
medical condition is on the Listing of Impairments, he notes that he provided
statements about the type, frequency, duration, and sequelae (conditions resulting
from a disease) of his seizures and descriptions of a typical seizure throughout the
administrative process. He also notes that he provided CDs and photos showing
him experiencing a seizure. He states that, during his seizures, he walks around,
swings his arms, fights, speaks incoherently, spits, exposes himself, urinates,
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masturbates, loses consciousness, stares blankly, and even tries to eat and make
sandwiches. He notes that he cannot drive because of his seizures; that he was
diagnosed with epilepsy by Dr. Anthony Murro, who evaluated him in 2010; and
that he received SSI benefits for approximately 20 years prior to his incarceration
in 2008. Further, Mr. Bellew argues that he has had epilepsy since 1996; that he
has memory loss at certain times and was told by doctors that every time a seizure
occurs, it causes further memory loss; and that his seizure medications have never
been able to control or stop his seizures. He argues that, because of his memory
loss, he often forgets his medication and that, when he has a seizure, he is unsure
whether he took his medication. He states that he had seizures not only because he
missed medications, but also because of his past drug use. He further notes that he
has no income and no available means of obtaining his medication. He appears to
argue that he had justifiable cause for failing to follow his prescribed seizure
treatment in that he was unable to afford his medication. Mr. Bellew notes that he
was able to obtain medication from a program called Project Access, but he could
not afford the medication. He also received medication from his mother, who was
on the same seizure medications, and during his emergency room visits. Mr.
Bellew reiterates that his seizures were not controlled with medications at all
times; he contends this can be seen in his 2004 and 2008-2009 medical records
from the DOC.
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Regarding the seizure-related Listings, we find no reversible error in the
ALJ’s determination that Mr. Bellew failed to demonstrate that his seizure activity
met or equaled the criteria of Listings 11.02 or 11.03 because no opinion from an
acceptable medical source found that Mr. Bellew’s impairments were equivalent in
severity to the criteria of either listed impairment. As noted above, the claimant
has the burden of proving that his impairment meets or equals a listed impairment.
Barron, 924 F.2d at 229. To meet the requirements of a Listing, a claimant not
only must have been diagnosed with a condition included in the Listing, but he
must also provide medical reports documenting that the condition meets the
Listing’s specific criteria and duration requirement. Wilson, 284 F.3d at 1224. An
impairment cannot meet the Listing criteria based only on a diagnosis. Carnes v.
Sullivan, 936 F.2d 1216, 1218 (11th Cir. 1991); 20 C.F.R. § 416.925(d). An
impairment that meets only some of the Listing requirements does not qualify.
Zebley, 493 U.S. at 530.
In the light of Mr. Bellew’s medical record, substantial evidence supports
the ALJ’s determination that Mr. Bellew’s seizure activity did not meet or equal
the severity of Listings 11.02 and 11.03. Mr. Bellew’s medical records indicated
that his seizures did not occur with the frequency or severity needed to meet the
Listings. Contrary to his argument that he met Listing 11.02, there was insufficient
documentation in his medical records that he experienced either convulsive
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seizures in which he lost consciousness or nocturnal episodes, which manifested
residual effects that interfered significantly with his daily activity, more frequently
than once a month. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02. Rather,
Dr. Arthur M. Schiff, who conducted a physical RFC assessment, determined that
Mr. Bellew’s seizures were not of Listing-level severity, as they consisted of brief
staring episodes and déjà vu with no postictal state (the recovery period following
a seizure). In addition, Mr. Bellew informed Dr. Murro that his typical seizure
activity consisted of blank stares, speaking with inappropriate words, picking
movements, confusion, unresponsiveness, a déjà vu sensation, enlarged pupils, and
memory loss during the event. While Mr. Bellew experienced seizures more
frequently than once a month, as required by the Listing, his seizure activity failed
to meet all of the Listing’s requirements.
With regard to Listing 11.03, similarly there was no detailed documentation
in Mr. Bellew’s medical records of nonconvulsive seizures occurring more
frequently than once a week, in which he experienced transient postictal
manifestations of unconventional behavior or significant interference with activity
during the day. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03. As noted above,
Dr. Schiff determined that Mr. Bellew experienced only brief staring episodes and
déjà vu and no postictal state. In addition, evidence contained in Mr. Bellew’s
emergency-department records indicated that he returned to normal relatively
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quickly following a seizure. For example, on one occasion in which he was taken
to the emergency department following a seizure, he was back to normal upon
arriving at the hospital, and his examination findings did not show any lasting
effects from the seizure. Likewise, on another occasion, treating physicians
observed that following a seizure Mr. Bellew was in no acute distress, was alert
and oriented, and had no neurological deficits upon examination. And, notably, his
treatment records did not contain the required detailed description of a typical
seizure. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00(A). While Mr. Bellew’s
mother testified at the ALJ hearing about his typical seizures, he was required to
provide medical reports documenting that the conditions of his impairment met the
Listings’ specific criteria. See Wilson, 284 F.3d at 1224.
Additionally, Mr. Bellew’s medical records reflected that he had not taken
his seizure medication prior to the seizures for which he was treated, indicating
that he was noncompliant with his prescribed antiepileptic treatment consistently
for three months as required by both Listings. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, §§ 11.00(A), 11.02, 11.03. On numerous occasions, testing revealed that
Mr. Bellew’s Dilantin levels were subtherapeutic, and he admitted that he had
missed doses of his Dilantin medication. Mr. Bellew contends, however, that
because he was unable to afford his medication, his noncompliance was excused.
See Dawkins, 848 F.2d at 1213. The ALJ made no finding concerning Mr.
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Bellew’s compliance with his seizure medication and indeed did not mention
compliance or lack thereof in the decision. Thus, although both parties argue at
length about Mr. Bellew’s noncompliance with his medications, because the ALJ
did not rely on Mr. Bellew’s noncompliance, the ALJ’s failure to consider
evidence regarding Mr. Bellew’s ability to pay for his medications does not
constitute error. See Ellison, 355 F.3d at 1275. We therefore conclude that
substantial evidence supported the ALJ’s conclusion that Mr. Bellew’s seizure
activity did not meet or equal the criteria of Listing 11.02 or 11.03.
B.
Section 12.00 contains the Listings for mental disorders, which are arranged
in nine diagnostic categories: “[o]rganic mental disorders (12.02); schizophrenic,
paranoid and other psychotic disorders (12.03); affective disorders (12.04);
intellectual disability (12.05); anxiety-related disorders (12.06); somatoform
disorders (12.07); personality disorders (12.08); substance addiction disorders
(12.09); and autistic disorder and other pervasive developmental disorders
(12.10).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A).
With the exception of Listings 12.05 and 12.09, all of the section 12.00
Listings consist of (i) a statement describing the disorders addressed by the Listing;
(ii) paragraph A criteria, which are a set of necessary medical findings; and
(iii) paragraph B criteria, which list impairment-related functional limitations that
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are incompatible with the claimant’s ability to do any gainful activity. Id.
§§ 12.00(A), 12.02, 12.03, 12.04, 12.06, 12.07, 12.08. Listings 12.02, 12.03,
12.04, and 12.06 also include additional functional criteria, known as paragraph C
criteria. Id. §§ 12.00(A), 12.02, 12.03, 12.04, 12.06. A claimant can meet one of
these Listings only if “the diagnostic description in the introductory paragraph and
the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed
impairment are satisfied.” Id. § 12.00(A).
The paragraph B criteria require a claimant to have at least two of the
following: marked restrictions in activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended
duration. Id. §§ 12.02(B), 12.03(B), 12.04(B), 12.06(B), 12.07(B), 12.08(B).
“Marked” means “more than moderate but less than extreme;” marked restriction
occurs when the degree of limitation seriously interferes with a claimant’s ability
to function “independently, appropriately, effectively, and on a sustained basis.”
Id. § 12.00(C); see 20 C.F.R. § 416.920a(c)(4) (describing a five-point scale used
to rate the degree of limitation: none, mild, moderate, marked, and extreme).
“Episodes of decompensation” are “exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested
by difficulties in performing activities of daily living, maintaining social
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relationships, or maintaining concentration, persistence, or pace.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). To meet the criterion of “repeated”
episodes of “extended duration,” a claimant must have three episodes within one
year, or an average of once every four months, each lasting for at least two weeks.
Id.
As regards paragraph C criteria, 12.02(C), 12.03(C), and 12.04(C) require a
medically documented history of the alleged mental disorder “of at least 2 years’
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support,” as well as one of the following: (1) repeated episodes of
decompensation, each of extended duration; (2) a residual disease process resulting
in “such marginal adjustment” that it is predicted that “even a minimal increase in
mental demands or change in the environment” would cause decompensation; or
(3) a current history of at least one year’s “inability to function outside a highly
supportive living arrangement,” with an indication that this arrangement needs to
continue. Id. §§ 12.02(C), 12.03(C), 12.04(C). Listing 12.06(C) requires that the
claimant’s impairment results in a complete inability to function outside the area of
her home. Id. § 12.06(C). Listings 12.07 and 12.08 do not contain a paragraph C.
See id. §§ 12.07, 12.08.
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Listing 12.05, which concerns intellectual disability, contains an
introductory paragraph with the diagnostic description for intellectual disability,
followed by four additional sets of criteria (paragraphs A through D). 20 C.F.R.
Pt. 404, Subpt. P, App. 1, §§ 12.00(A), 12.05. For an impairment to meet Listing
12.05, it must satisfy both the diagnostic description in the introductory paragraph
and any one of the four sets of criteria. Id. § 12.00(A). The introductory
paragraph defines intellectual disability as: (i) significantly subaverage general
intellectual functioning (ii) with deficits in adaptive behavior (iii) that manifested
before age 22. Id. § 12.05; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997). A valid IQ score of 60 to 70 creates a rebuttable presumption that a
claimant manifested deficits in adaptive functioning before age 22 under this
paragraph. Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001).
Finally, Listing 12.09, which pertains to substance addiction disorders, is
structured as a reference listing and only serves to indicate which of the other listed
impairments “must be used to evaluate the behavioral or physical changes resulting
from regular use of addictive substances.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.00(A), 12.09.
We turn now to the question of whether Mr. Bellew met his burden of
proving that his mental impairments met or equaled the criteria of any listed
impairment under section 12.00. Mr. Bellew contends that he has all of the
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following mental disorders: “(12.02); schizophrenic, paranoid and other psychotic
disorders (12.03); affective disorders (12.04); intellectual disability (12.05);
anxiety-related disorders (12.07); personality disorders. (12.09) Substance
Addiction (In Past Years).” Appellant Br. at 6. He argues that he has anger
management problems, moods of impending doom, depression, and anxiety, and
that he exhibits self-pity, repeats things over and over, and is not a “people
person.” Id. He also asserts that he does not: get along with family members or
strangers, follow orders or advice well, and maintain concentration or persistence
for long periods of time. He argues that he cannot do everything for himself, that
he has never handled his own finances, and that, although admittedly he did
crosswords, watched television, and helped his father around the house, he had
seizures while doing all of these things. Mr. Bellew further contends that mental
evaluations concerning these issues were documented to the Commissioner in his
medical records from “Serenity Mental health” at Georgia State Regional Hospital
of Admissions, American Works Mental Health Center, “Doctor Daniels,” Dr.
John C. Whitley, III, and clinic evaluations.
After determining that Mr. Bellew was not engaged in substantial gainful
activity, the ALJ concluded that Mr. Bellew had the following severe impairments:
personality disorder, not otherwise specified; antisocial traits; rule out mood
disorder due to a general medical condition; seizure activity; and anxiety disorder,
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not otherwise specified. The ALJ then considered these impairments under the
criteria of Listings 12.04 and 12.06, “as well as other relevant listings,” and
determined that Mr. Bellew’s impairments did not meet or equal a listed
impairment. As shown below, this determination was supported by substantial
evidence in the record.
Mr. Bellew has not met his burden of proving that he satisfied the
requirements of Listings 12.02, 12.03, 12.04, 12.06, 12.07, and 12.08. First, his
mental conditions did not meet the criteria of paragraph B. Although Mr. Bellew
had the burden of providing medical reports showing that his conditions met the
specific criteria of the Listings, he provided no medical evidence showing that he
had marked limitations in activities of daily living, maintaining social functioning,
or maintaining concentration, persistence, or pace. See Wilson, 284 F.3d at 1224(requiring the claimant to provide medical reports); 20 C.F.R. Pt. 404, Subpt. P,
App. 1, §§ 12.02(B), 12.03(B), 12.04(B), 12.06(B), 12.07(B), 12.08(B).
Regarding activities of daily living, during Dr. Whitley’s evaluation of Mr.
Bellew in February 2010, Mr. Bellew informed Dr. Whitley that: he was able to
bathe, dress, and cook for himself; he shopped independently; he helped his father
make small repairs around the house; and he was able to wash dishes and make his
bed. Mr. Bellew also informed Dr. Whitley that he was capable of performing
additional household chores. Additionally, Mr. Bellew reported in his October
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2010 function report that he was able to dress, bathe, groom, and feed himself. He
reported in a disability report that same month, however, that his mental condition
limited his ability to take care of his personal needs and that, occasionally, he did
not want to bathe, shower, brush his teeth, or eat a meal. Nonetheless, both
Dr. Celine Payne-Gair and Dr. Joseph Garmon, who both performed a mental RFC
assessment on Mr. Bellew, determined that he was only mildly restricted in his
activities of daily living. Substantial evidence thus supports the ALJ’s decision
that, at best, Mr. Bellew had moderate restrictions in activities of daily living, as
opposed to marked limitations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00(C)(1); 20 C.F.R. § 416.920a(c)(4).
As regards social functioning, Mr. Bellew informed Dr. Whitley that he
maintained a relationship with his two brothers and was close to his daughter. Mr.
Bellew also reported that he talked on the phone “a great deal” and that he spent
time with others walking, going to meetings at the shelter where he stayed, and
attending church. But, he also indicated in his October 2010 function report that
he had problems getting along with others and that he was antisocial. Following
his evaluation, Dr. Whitley noted that Mr. Bellew had difficulty with interpersonal
relations and determined that Mr. Bellew’s ability to interact with coworkers and
supervisors might be mildly impacted by his reported history of anger and mild
anxiety. Similarly, Dr. Payne-Gair and Dr. Garmon determined that Mr. Bellew
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had mild difficulties in maintaining social functioning. Substantial evidence thus
supports the ALJ’s decision that, at best, Bellew had moderate, not marked,
difficulties in maintaining social functioning. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00(C)(2); 20 C.F.R. § 416.920a(c)(4).
As for maintaining concentration, persistence, and pace, Mr. Bellew
informed Dr. Whitley that he was able to follow directions, watch television,
complete crossword puzzles, and manage his own finances. Dr. Whitley
determined that Mr. Bellew was able to understand and follow instructions and that
his ability to sustain effort and focus on pace for timely completion of tasks was
only mildly impacted by his impairments. In his October 2010 function report, Mr.
Bellew indicated that he was able to pay bills, count change, handle a savings
account, and use a checkbook or money order. Dr. Payne-Gair determined that Mr.
Bellew had only mild difficulties in concentration, persistence, or pace. However,
Dr. Garmon, determined that Mr. Bellew had moderate difficulties in maintaining
concentration, persistence, or pace. He found that Mr. Bellew was moderately
limited in his ability to understand, remember, and carry out detailed instructions.
Dr. Garmon also determined, though, that Mr. Bellew was able to concentrate and
persist for simple tasks, make simple work-related decisions, and adjust to slow-
paced and infrequent changes. Thus, because there was no evidence of any
medical provider determining that Mr. Bellew had marked limitations in
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maintaining concentration, persistence, or pace, substantial evidence supported the
ALJ’s decision that, at best, he had moderate limitations in this area. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.00(C)(3); 20 C.F.R. § 416.920a(c)(4).
Moreover, even if the ALJ erred in determining the extent of Mr. Bellew’s
limitations in one of the aforementioned areas, any error was harmless because Mr.
Bellew had to meet two of the four criteria in paragraph B, and substantial
evidence supports the ALJ’s finding that Mr. Bellew did not suffer from repeated
episodes of decompensation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.02(B),
12.03(B), 12.04(B), 12.06(B), 12.07(B), 12.08(B). Mr. Bellew does not argue that
he experienced any episodes of decompensation that were of extended duration, as
defined in the regulations, nor was there evidence of such episodes in the record.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). In fact, upon her review of
Mr. Bellew’s medical records, Dr. Payne-Gair found no evidence of episodes of
decompensation. Because he failed to meet the paragraph B criteria, Mr. Bellew
could not meet or equal Listings 12.07 or 12.08. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, §§ 12.00(A), 12.07, 12.08. Thus, he could meet or equal Listings 12.02,
12.03, 12.04, and 12.06 only if he satisfied the paragraph C criteria. See id. at
§ 12.00(A).
Substantial evidence supported the ALJ’s conclusion that Mr. Bellew failed
to satisfy the paragraph C criteria, and, thus, he did not meet or medically equal
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Listings 12.02, 12.03, 12.04, and 12.06. The ALJ did not discuss the threshold
inquiry into whether Mr. Bellew presented an adequate medical history of the
alleged mental disorder of the requisite severity, but, even assuming that Mr.
Bellew satisfied this requirement, for Listings 12.02, 12.03, and 12.04 he still
needed to show: (1) repeated episodes of decompensation of extended duration, (2)
a residual disease process resulting in “such marginal adjustment” that it is
predicted that “even a minimal increase in mental demands or change in the
environment” would cause decompensation, or (3) a current history of at least one
years’ “inability to function outside a highly supportive living arrangement,” and
an indication that this arrangement needs to continue. See id. §§ 12.02(C),
12.03(C), 12.04(C).
First, as noted above, no medical evidence supported that Mr. Bellew had
experienced repeated episodes of decompensation, no less of extended duration.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). Second, the medical
opinions and evidence that Mr. Bellew had only mild or moderate limitations in
activities of daily living, social functioning, and maintaining concentration,
persistence, or pace were sufficient to support the ALJ’s conclusion that the
evidence did not demonstrate that “even a minimal increase in mental demands or
a change in the environment” would predictably cause Mr. Bellew to
decompensate. Finally, the record indicates that Mr. Bellew was not completely
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unable to function outside of a highly supportive living arrangement, considering
that he was able to care for his own personal needs and adequately participated in
activities of daily living. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4).
The record also indicates that he was not completely unable to function outside the
area of his home, as required for Listing 12.06, because he reported that he walked
outside frequently, shopped independently, and attended church. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.06(C). Notably, Dr. Payne-Gair also found no
evidence of any paragraph C criteria. Because he also failed to meet paragraph C
criteria, Mr. Bellew could not meet or equal Listings 12.02, 12.03, 12.04, or 12.06.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A).
Finally, Mr. Bellew also failed to meet his burden of proving that he
satisfied the requirements of Listing 12.05. Dr. Whitley’s testing revealed that Mr.
Bellew had a verbal IQ score of 68, but Mr. Bellew offered no other medical
evidence that satisfies Listing 12.05. There was no evidence of his intellectual or
adaptive functioning before age 22 in the record, and Dr. Whitley’s testing
revealed a full scale IQ score of 74 in the borderline range, as opposed to the
required significantly subaverage general intellectual functioning. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.05; Crayton, 120 F.3d at 1219. Because Mr. Bellew
failed to provide evidence satisfying the diagnostic description in the introductory
paragraph of Listing 12.05, he cannot meet the threshold requirement for a finding
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of disability under that Listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00(A). And, he meets no other listed impairments, he cannot meet Listing
12.09, as that Listing is a reference listing indicating which of the other listed
impairments must be used to evaluate the behavioral or physical changes resulting
from regular use of addictive substances. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.00(A), 12.09.
Accordingly, the ALJ’s conclusion at step three of the sequential analysis is
supported by substantial evidence.
IV.
At step four of the sequential analysis, the ALJ must determine a claimant’s
RFC and whether, in the light of his RFC, a claimant can perform his past relevant
work or, if not, can make an adjustment to other work, in the light of his RFC, age,
education, and work experience. Winschel, 631 F.3d at 1178; 20 C.F.R.
§ 416.920(a)(4). A claimant’s RFC is an assessment, based upon all relevant
evidence, of the claimant’s ability to work despite his impairments. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 416.945(a)(1). The
ALJ considers all of the evidence in the record in determining the claimant’s RFC.
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).
To show a disability based on testimony of pain or other subjective
symptoms,
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the claimant must satisfy two parts of a three-part test 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 [symptoms].
Wilson, 284 F.3d at 1225. Under Social Security regulations, the ALJ follows a
two-step analysis in considering a claimant’s complaints: first, the ALJ decides
whether there is an underlying medically determinable impairment that could
reasonably be expected to cause the claimant’s pain or other symptoms, and
second, once a claimant has established an impairment that could reasonably
produce his symptoms, the ALJ evaluates the intensity and persistence of the
symptoms and their effect on the claimant’s functioning. 20 C.F.R. §§ 416.929(a),
(c)(1).
In weighing the evidence, credibility determinations “are the province of the
ALJ.” Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (per curiam).
However, if the ALJ discredits the claimant’s subjective testimony, the ALJ “must
articulate explicit and adequate reasons for doing so,” and the failure to do so
“requires, as a matter of law, that the testimony be accepted as true.” Wilson, 284
F.3d at 1225. When evaluating a claimant’s subjective symptoms, the ALJ must
consider such things as: (1) the claimant’s daily activities, (2) the nature and
intensity of pain and other symptoms, (3) precipitating and aggravating factors, (4)
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effects of medications, and (5) treatment or measures taken by the claimant for
relief of symptoms. See 20 C.F.R. § 404.1529(c)(3).
Mr. Bellew argues that the ALJ’s determination that his subjective
complaints were not fully credible was improperly conclusory. He asserts that the
fact that he engaged in a reasonable range of daily living activities did not negate
the credibility of his subjective complaints. He further contends that the ALJ
mischaracterized his testimony and the statements of his relatives regarding his
ability to engage in functional activities. He contends that the ALJ’s credibility
assessment was not supported by substantial evidence, given that it failed to
specify how his daily schedule rendered the symptoms he alleged not credible.
And, he argues that any inconsistencies in his testimony regarding the onset of his
seizures were due to his impaired memory as a result of his seizures.
The ALJ found that Mr. Bellew had the RFC to perform a full range of work
at all exertional levels and a limited, but satisfactory, ability to understand,
remember, and carry out detailed instructions; to respond appropriately to changes
in the work setting; and to set realistic goals or make plans independently of others.
The ALJ also determined that Mr. Bellew could no more than occasionally climb;
was precluded from climbing ladders, ropes, or scaffolds; and should avoid all
exposure to hazards, such as machinery and heights. After finding that Mr.
Bellew’s medically determinable impairments could reasonably be expected to
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cause his alleged symptoms, the ALJ made a clearly articulated finding that the
statements of Mr. Bellew and his relatives were not fully credible, specifically, that
their allegations concerning the intensity, persistence, and limiting effects of his
symptoms were not credible to the extent they were inconsistent with the ALJ’s
RFC assessment.
Furthermore, contrary to Mr. Bellew’s argument on appeal that the ALJ’s
determination was improperly conclusory, throughout his decision the ALJ
explicitly articulated the reasons for discrediting the subjective testimony of Mr.
Bellew and his relatives. The ALJ discussed several inconsistencies between their
subjective testimony, on the one hand, and the medical evidence and Mr. Bellew’s
previous statements regarding the severity of his limitations, on the other. The
ALJ noted that Mr. Bellew had given varying accounts regarding the onset of his
seizures, including that he had suffered seizures since birth, had been diagnosed
with epilepsy at age 18, and had started experiencing seizures only after sustaining
a head injury in 2004. Although Mr. Bellew asserts that any inconsistencies in his
testimony regarding the onset of his seizures were due to his impaired memory as a
result of the seizures, the ALJ did not base his credibility determination on this
inconsistency alone. The ALJ also discussed additional discrepancies between Mr.
Bellew’s alleged limitations and his prior statements concerning his daily
activities, including, in part, whether he was limited in his ability: (1) to walk and
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talk, when he also asserted that he walked outside all the time and had informed
Dr. Whitley that he talked on the phone “a great deal”; (2) to remember and
concentrate, when he had informed Dr. Whitley that he watched television and did
crossword puzzles all the time; and (3) to follow instructions, when he had told
Dr. Whitley that he could follow instructions. While Mr. Bellew contends the fact
that he engaged in a “reasonable range of daily living activities” did not negate the
credibility of his subjective testimony, the ALJ was entitled to consider his daily
activities when evaluating his subjective symptoms. See 20 C.F.R.
§ 404.1529(c)(3).
Additionally, the ALJ found that the medical opinions of the physicians who
had evaluated Mr. Bellew did not corroborate all of his allegations regarding the
severity of his limitations. Dr. Schiff determined that Mr. Bellew had no
exertional, postural, manipulative, visual, communicative, or environmental
limitations, other than a need to avoid all hazards, such as machinery and heights.
Dr. Stanley opined that Mr. Bellew had no exertional, manipulative, or visual
limitations, but, due to his seizures, he could never climb ladders, ropes, and
scaffolds; could only occasionally climb ramps and stairs; and needed to avoid all
exposure to hazards, such as machinery and heights. Thus, the ALJ included a
number of Mr. Bellew’s alleged limitations in his RFC assessment, including his
limited abilities to climb and to understand, remember, and carry out detailed
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instructions, and his need to avoid exposure to hazards, all of which were
supported by objective medical evidence in the record.
Furthermore, Mr. Bellew did not report to his medical providers that he
experienced seizures of the severity that he and his mother asserted. For example,
when he saw Dr. Murro at an epilepsy clinic, Mr. Bellew described his typical
seizure activity as consisting of blank stares, speaking with inappropriate words,
picking movements, confusion, unresponsiveness, a déjà vu sensation, enlarged
pupils, and memory loss during the event. His medical records did not contain any
references to spitting, urinating, masturbating, or attempting to make a sandwich
during a seizure, as he and his mother contended at the hearing before the ALJ and
he has reiterated on appeal.
We conclude that substantial evidence supported the ALJ’s finding that Mr.
Mr. Bellew’s subjective testimony regarding the intensity, persistence, and limiting
effects of his symptoms was not credible to the extent that it was inconsistent with
the ALJ’s RFC assessment. As the ALJ found, Mr. Bellew’s testimony also was
inconsistent with his prior statements and was uncorroborated by the medical
evidence of record.
V.
At step five of the sequential evaluation process, the Social Security
Commissioner must establish that, given the claimant’s RFC, age, education, and
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work experience, significant numbers of jobs exist in the national economy that the
claimant can perform. Winschel, 631 F.3d at 1178, 1180. An ALJ may make this
determination either by applying the Medical Vocational Guidelines or by
obtaining the testimony of a vocational expert (“VE”). Id. at 1180. “In order for a
vocational expert’s testimony to constitute substantial evidence, the ALJ must pose
a hypothetical question which comprises all of the claimant’s impairments.” Id.(internal quotation marks omitted). However, an ALJ is not required to include
findings resulting from a hypothetical question that the ALJ properly rejected as
unsupported. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.
2004) (per curiam).
The claimant bears the burden of proving that he is disabled and, thus, is
responsible for producing evidence to support his claim. Ellison, 355 F.3d at 1276.
Nonetheless, the Commissioner has a limited burden at step five to show the
existence of a significant number of jobs that the claimant can perform. 20 C.F.R.
§ 416.920(a)(4)(v).
On appeal, Mr. Bellew argues that he could not perform any type of work
given the behavior he exhibited during his seizures, specifically, the danger he
presented to others when having a seizure. He argues that the Commissioner, the
VE, and the ALJ should have considered the length of years he had been
experiencing seizures, his actions during his seizures and his lack of control over
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those actions, and the extraordinary strength he developed during his seizures.
He contends that a doctor stated on a “letter of disability” that he should not
perform activities that would put himself or others at a risk of injury as a result of
his seizures. 1 In addition, Mr. Bellew argues that the ALJ erred by failing to
consider the response to the second hypothetical posed to the VE, in which the VE
testified that someone who experienced at unpredictable intervals seizures lasting
15 minutes at a time, three times per week could not perform any work in the
national economy. Mr. Bellew asserts that the ALJ erred in determining that this
second hypothetical was unsupported by evidence of record, as he presented to the
ALJ CD videos of his behavior during seizures.
Substantial evidence supported the ALJ’s determination that, considering
Mr. Bellew’s age, education, work experience, and his RFC, there existed a
significant number of jobs in the national economy that he could perform, given
that the ALJ properly relied on the testimony of the VE and on the medical
opinions of record in making this determination. See Winschel, 631 F.3d at 1180.
The ALJ properly obtained the testimony of a VE and asked the VE to consider
two hypothetical individuals. In the first hypothetical, the VE was asked to
consider an individual with Mr. Bellew’s RFC and testified that such an individual,
1
Mr. Bellew also argues that insufficient weight was given to his treating physician’s
opinion and medical records; however, we need not consider this argument because it was not
presented to the ALJ and was raised for the first on appeal. See Kelley v. Apfel, 185 F.3d 1211,
1215 (11th Cir. 1999) (per curiam).
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who also had Mr. Bellew’s age, education, and prior relevant work experience,
could perform several jobs in the national economy, namely hand packer, hand
laundry, dining room attendant, garment folder, and plastic assembler. In the
second hypothetical, the VE was asked to consider an individual who, in addition
to the limitations described in Mr. Bellew’s RFC, experienced seizures three times
per week during the workday, at unpredictable intervals, lasting roughly 15
minutes at a time, during which he was unable to focus and was off task. The VE
testified that such an individual could not perform any work in the national
economy.
The first hypothetical question, which mirrored the ALJ’s RFC finding,
properly included all of Mr. Bellew’s limitations that were supported by substantial
evidence in the record. See Crawford, 363 F.3d at 1161. This hypothetical
included the findings of Dr. Schiff, who determined that Mr. Bellew had no
exertional limitations, other than a need to avoid all hazards, such as machinery
and heights, and Dr. Stanley, who determined that Mr. Bellew had no exertional
limitations but could never climb ladders, ropes, and scaffolds; could only
occasionally climb ramps and stairs; and needed to avoid all exposure to hazards.
It also included nonexertional-limitation findings of Dr. Garmon, who concluded
that Mr. Bellew was moderately limited in his ability to understand, remember, and
carry out detailed instructions; to respond appropriately to changes in the work
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setting; and to set realistic goals or make plans independently of others. Thus, the
limitations used to determine whether Mr. Bellew could perform jobs that existed
in the national economy were supported by the medical opinions of record.
Further, contrary to Mr. Bellew’s argument on appeal, the ALJ did not err by
failing to consider the VE’s response to the second hypothetical, as the additional
limitations included in the second hypothetical were not supported by the evidence
of record. See Crawford, 363 F.3d at 1161. As described above, substantial
evidence supported the ALJ’s finding that Mr. Bellew’s assertions regarding the
frequency and severity of his seizures were not credible. The ALJ properly relied
on the VE’s testimony, and the ALJ’s finding at step five that there is work Mr.
Bellew can perform in the national economy is supported by substantial evidence.
VI.
Whether or not a claimant is represented by counsel, the ALJ has a duty to
develop a full and fair record. Ellison, 355 F.3d at 1276; see also 20 C.F.R.
§ 416.912(d) (stating that, before the ALJ determines the claimant is not disabled,
“[the ALJ] will develop [the claimant’s] complete medical history for at least the
12 months preceding the month in which [he] file[s his] application”).
“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.”
Ellison, 355 F.3d at 1276; see 20 C.F.R. § 416.912(a) (stating that the claimant
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“must furnish medical and other evidence that [the ALJ] can use to reach
conclusions about [the claimant’s] medical impairment(s)”).
In determining whether remand is necessary 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) (per curiam) (internal quotation marks omitted). Accordingly, “there must
be a showing of prejudice before we will find that the claimant’s right to due
process has been violated to such a degree that the case must be remanded to the
[ALJ] for further development of the record.” Id. (internal quotation marks
omitted). Before ordering a remand, we will review the administrative record as a
whole to determine if it is inadequate or incomplete or “show[s] the kind of gaps in
the evidence necessary to demonstrate prejudice.” Graham v. Apfel, 129 F.3d
1420, 1423 (11th Cir. 1997) (per curiam).
Mr. Bellew argues that the ALJ neglected the duty to develop the factual
record by failing to obtain Mr. Bellew’s 2008-2009 medical records from the DOC
(in order to document the history of his seizure disorder) before concluding that
Mr. Bellew had presented no evidence of disability during the relevant time period.
Mr. Bellew contends that these records would reflect that he had been taking
seizure and anti-psychotic medications while incarcerated and yet continued to
have seizures. He further asserts that he signed a form to retrieve these medical
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records when he submitted his SSI application, but the records were not obtained.
With regard to the videos of his seizures, Mr. Bellew does not argue specifically
that the ALJ erred in not considering them, but he notes in his brief that the videos
constituted evidence of the severity of his seizures. He also contends that the ALJ
“refused to take them as he said he had no means to view them.” Appellant Br. at
9.
Here, there was sufficient medical evidence in the existing record for the
ALJ to make an informed decision. See Graham, 129 F.3d at 1423. We agree that
the ALJ neglected his duty to develop the record with Mr. Bellew’s 2008-2009
medical records from the DOC, as these records contained his medical history for
the 12 months preceding the filing of his SSI application on January 11, 2010. See
Ellison, 355 F.3d at 1276; 20 C.F.R. § 416.912(d). Nonetheless, this error was
harmless because Mr. Bellew has alleged no facts showing either that there were
gaps in the evidentiary record or that he suffered clear prejudice. Although Mr.
Bellew contends that these records would document the history of his seizure
disorder and reflect that he had been taking seizure medications while incarcerated
and yet continued to have seizures, the record already contained ample evidence of
the history of his seizure activity. In addition, Mr. Bellew suggests that these
additional records would show that his seizure disorder was not susceptible to
complete control, even with appropriate medications, which is a threshold
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requirement under Listing 11.00. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 11.00(A) (stating that the criteria under Listing 11.02 and 11.03 may only be
applied if the claimant’s impairment persists “despite the fact that the individual is
following prescribed antiepileptic treatment”). But Mr. Bellew’s seizure activity
still must meet or equal the severity of Listings 11.02 and 11.03, and he has never
contended that these additional records would be relevant to the severity of his
seizures or that they would provide evidence establishing that his seizure activity
meets or equals Listing-level severity. See Wilson, 284 F.3d at 1224 (stating that,
to meet the requirements of a Listing, a claimant must provide medical reports
documenting that his condition meets the Listing’s specific criteria and duration
requirements); 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 11.02-11.03 (describing the
criteria for disability based on seizure activity). Further, to the extent Mr. Bellew
seeks to offer this evidence to counter the Commissioner’s argument that Mr.
Bellew’s noncompliance with medication precluded him from meeting the
requirements of a Listing, the ALJ did not rely on or even discuss in his decision
whether Mr. Bellew was noncompliant. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 11.00(A). Thus, Mr. Bellew cannot show that the ALJ’s failure to develop the
record with this evidence resulted in unfairness or clear prejudice. See Brown,
44 F.3d at 935.
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Additionally, contrary to Mr. Bellew’s and his mother’s assertion that they
submitted CDs containing video recordings of Mr. Bellew’s seizure activity to the
Commissioner, there is no evidence in the record that they submitted any CDs.
Because Mr. Bellew is responsible for producing evidence in support of his claim,
the burden was on him to submit the CDs to the Commissioner. See Ellison, 355
F.3d at 1276; 20 C.F.R. § 416.912(a). In any event, even if the ALJ’s failure to
request these videos from Mr. Bellew or to watch them at the administrative
hearing was error, Mr. Bellew suffered no prejudice. See Brown, 44 F.3d at 935.
Videos of Mr. Bellew suffering seizures would not have supported the longer term
or frequency of seizures that he alleged. The videos, at best, may have been
relevant to the severity of his seizures, but the ALJ already had accepted the fact
that Mr. Bellew had seizures and that his seizure disorder constituted a severe
impairment. Because there was substantial evidence to support the ALJ’s decision
without this evidence, Mr. Bellew cannot show prejudice.
VI.
Upon review of the entire record on appeal, and after consideration of the
parties’ briefs, we affirm.
AFFIRMED.
35