United States District Court, M.D. Florida, Fort Myers Division
MIRANDO United States Magistrate Judge.
Sixto Rodriguez appeals the final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying his claims for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The Court
has reviewed the record, the briefs and the applicable law.
For the reasons discussed herein, the decision of the
Commissioner is affirmed.
Issues on Appeal
raises three issues on appeal: (1) whether the Administrative
Law Judge (“ALJ”) properly evaluated
Plaintiff's literacy; (2) whether the ALJ properly
assessed Plaintiff's ability to speak English; and (3)
whether substantial evidence supports the ALJ's finding
that Plaintiff has mild difficulties in social functioning.
Procedural History and Summary of the ALJ's
August 24, 2011, Plaintiff protectively filed applications
for a period of DIB and SSI alleging that he became disabled
and unable to work on June 1, 2011 due to a nephrectomy and
kidney cancer. Tr. 99, 109, 271-73. The Social Security
Administration denied his claim initially on September 7,
2011, and upon reconsideration on December 7, 2011. Tr.
129-39, 144-53. Plaintiff requested and received a hearing
before ALJ Joseph L. Brinkley on January 7, 2014, during
which he was represented by his attorney. Tr. 222-37.
Plaintiff, with the assistance of a Spanish interpreter, and
a vocational expert (“VE”), Steve Bast, testified
at the hearing.
March 19, 2014, the ALJ issued a decision finding that
Plaintiff was not disabled and denied his claim. Tr. 25-36.
The ALJ first determined that Plaintiff met the insured
status requirements of the Social Security Act through
December 31, 2013. Tr. 27. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since June 1, 2011, the alleged onset date. Id. At
step two, the ALJ determined that Plaintiff has the following
severe impairments: allergic rhinitis; status-post renal cell
carcinoma with status-post nephrectomy of the right kidney;
premature ventricular contractions; fatigue; dyslipidemia;
loss of visual acuity in the right eye; and depression.
Id. At step three, the ALJ concluded that Plaintiff
“does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” Tr. 28.
doing so, the ALJ specifically considered the four broad
functional areas set out in the regulations for evaluating
mental disorders in section 12.00 of the Listing of
Impairments, the so-called “paragraph B”
criteria. Tr. 28-29. In the first functional area of
daily living, the ALJ determined that Plaintiff has mild
restriction. Tr. 28. The ALJ noted that Plaintiff sometimes
performed chores. Id. In the next functional area,
social functioning, the ALJ found that Plaintiff has mild
difficulties. Id. The ALJ noted that although
Plaintiff felt very sad and wanted to be alone due to
depression, Plaintiff sometimes drove with his family to shop
and lived with his wife, daughter, and father-in-law.
third functional area of concentration, persistence, or pace,
the ALJ found Plaintiff to have moderate difficulties.
Id. The ALJ indicated that Plaintiff reported he
could concentrate only eight to ten minutes and had
difficulty reading and following instructions to prepare
dinners. Id. The ALJ, however, noted that Plaintiff
was able to advance in his job when he worked in the
construction industry. Id. The ALJ also stated that
Plaintiff has a valid United States driver's license
after passing a test administered in English and Spanish,
drives, and is able to understand the driving signs in
English. Id. In the fourth functional area of
episodes of decompensation, the ALJ found that Plaintiff had
experienced no episodes of decompensation of an extended
into account the effects of all of Plaintiff's
impairments, the ALJ determined that Plaintiff has the
residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b). Tr. 29. The ALJ, however, noted that
Plaintiff's ability to perform light work is subject to a
number of limitations, including Plaintiff's limited
ability to speak English. Id. Next, the ALJ found
that Plaintiff was unable to perform his past relevant work
(“PRW”), but there are jobs existing in
significant numbers in the national economy that Plaintiff
can perform. Tr. 34-35. Thus, the ALJ found Plaintiff was not
disabled and denied his claim. Tr. 36.
the ALJ's decision, Plaintiff filed a request for review
by the Appeals Council, which was denied on August 6, 2015.
Tr. 1-6. Accordingly, the March 19, 2014 decision is the
final decision of the Commissioner. Plaintiff filed an appeal
in this Court on September 25, 2015. Doc. 1. Both parties
have consented to the jurisdiction of the United States
Magistrate Judge, and this matter is now ripe for review.
Docs. 17, 18.
Social Security Act Eligibility and Standard of
claimant is entitled to disability benefits when he is unable
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. §
404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability.
See 20 C.F.R. §416.920. The Eleventh Circuit
has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether
these impairments meet or equal an impairment listed in the
Listing of Impairments; (4) if not, whether the claimant has
the residual functional capacity (“RFC”) to
perform his past relevant work; and (5) if not, whether, in
light of his age, education, and work experience, the
claimant can perform other work that exists in
“significant numbers in the national economy.”
Atha v. Comm'r, Soc. Sec. Admin., 616 F.
App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R.
§§ 416.920(a)(4), (c)-(g), 416.960(c)(2);
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). The claimant bears the burden of
persuasion through step four; and, at step five, the burden
shifts to the Commissioner. Atha, 616 F. App'x
at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). The scope of this Court's review is limited to
determining whether the ALJ applied the correct legal
standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d
1077, 1080 (11th Cir. 1988) (citing Richardson v.
Perales, 402 U.S. 389, 390 (1971)). The
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is “more than a scintilla,
i.e., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
such relevant evidence as a reasonable person would accept as
adequate to support the conclusion.” Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (finding that
“[s]ubstantial evidence is something more than a mere
scintilla, but less than a preponderance”) (internal
Eleventh Circuit recently has restated that “[i]n
determining whether substantial evidence supports a decision,
we give great deference to the ALJ's fact
findings.” Hunter v. Soc. Sec. Admin.,
Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing
Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d
1079, 1082 (11th Cir. 1996)). Where the Commissioner's
decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a
contrary result as finder of fact, and even if the reviewer
finds that the preponderance of the evidence is against the
Commissioner's decision. Edwards v. Su
livan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). “The district court must view the record as
a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote, 67 F.3d
at 1560; see also Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the
factual findings). It is the function of the Commissioner,
and not the courts, to resolve conflicts in the evidence and
to assess the credibility of the witnesses. Lacina v.
Commissioner, 2015 WL 1453364, at *2 (11th Cir. 2015)
(citing Grant v. Richardson, 445 F.2d 656 (5th
Whether the ALJ properly evaluated Plaintiff's
evaluating Plaintiff's RFC, the ALJ found that Plaintiff
can perform light work, except that Plaintiff is
“limited in the ability to speak English, but can speak
some English and is better at understanding it than speaking
it.” Tr. 29. During the hearing, the ALJ's
hypothetical question to the VE also included “a
limited ability to speak and understand English, but would be
able to understand simple - although, not speak it -
English.” Tr. 86. The ALJ limited his hypothetical
question to “unskilled, simple, routine, repetitive
tasks and to work that does not require production quotas
and/or fast-paced assembly line jobs.” Tr. 87.
argues that the ALJ erred by making findings about
Plaintiff's ability to speak and understand English, but
not about Plaintiff's ability to read and write English.
Doc. 25 at 8-9. Plaintiff argues that he is functionally
illiterate because he cannot read English and write any more
than his name in English. Id. at 9. Plaintiff
asserts that he cannot read detailed messages such as TV
dinner instructions and did not have to understand English
when he passed his driver's license test. Id.
Because the ALJ did not include Plaintiff's ...