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Rodriguez v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

February 8, 2017



          CAROL MIRANDO United States Magistrate Judge.

         Plaintiff 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.

         I. Issues on Appeal

         Plaintiff 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.

         II. Procedural History and Summary of the ALJ's Decision

         On 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.

         On 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.

         In 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.[1] 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. Id.

         In the 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 duration. Id.

         Taking 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.

         Following 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.

         III. Social Security Act Eligibility and Standard of Review

         A 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 citation omitted).

         The 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 Cir.1971)).

         IV. Discussion

         a. Whether the ALJ properly evaluated Plaintiff's literacy

         In 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.

         Plaintiff 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 ...

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