United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
MCCOY UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on Plaintiff Leslie Jeppesen's
Complaint (Doc. 1) filed on December 11, 2015. Plaintiff
seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“SSA”) denying her claim for a period of
disability, disability insurance benefits, and supplemental
security income. The Commissioner filed the Transcript of the
proceedings (hereinafter referred to as “Tr.”
followed by the appropriate page number), and the parties
filed legal memoranda in support of their positions. For the
reasons set out herein, the decision of the Commissioner is
AFFIRMED IN PART and REVERSED AND REMANDED IN PART pursuant
to § 205(g) of the Social Security Act, 42 U.S.C. §
Social Security Act Eligibility, the ALJ's Decision, and
Standard of Review
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. The impairment must be
severe, making the claimant unable to do her previous work,
or any other substantial gainful activity that exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511,
416.905 - 416.911. Plaintiff bears the burden of persuasion
through step four, while the burden shifts to the
Commissioner at step five. Bowen v. Yuckert, 482
U.S. 137, 146 n.5 (1987).
filed applications for disability insurance benefits and for
supplemental security income asserting an onset date of
August 25, 2010. (Tr. at 32). Plaintiff's disability
insurance benefits application was denied initially on
October 3, 2011, and on reconsideration on November 22, 2011.
(Tr. at 121-22). A hearing was held before Administrative Law
Judge (“ALJ”) M. Dwight Evans on March 20, 2014.
(Tr. at 50-101). The ALJ issued an unfavorable decision on
July 17, 2014. (Tr. at 29-49). The ALJ found Plaintiff not to
be under a disability from August 25, 2010, through the date
of the decision. (Tr. at 43).
October 26, 2015, the Appeals Council denied Plaintiff's
request for review. (Tr. at 1-7). Plaintiff filed a Complaint
(Doc. 1) in the United States District Court on December 11,
2015. Defendant filed an Answer (Doc. 12) on February 18,
2016. Both parties filed memoranda in support of their
positions. (Docs. 23-24). The parties consented to proceed
before a United States Magistrate Judge for all proceedings.
(See Doc. 16). This case is ripe for review.
Summary of the ALJ's Decision
must follow a five-step sequential evaluation process to
determine if a claimant has proven that she is disabled.
Packer v. Comm'r of Soc. Sec., 542 F. App'x
890, 891 (11th Cir. 2013) (citing Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must
determine whether the claimant: (1) is performing substantial
gainful activity; (2) has a severe impairment; (3) has a
severe impairment that meets or equals an impairment
specifically listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1; (4) can perform past relevant work; and (5) can
perform other work of the sort found in the national economy.
Packer, 542 F. App'x at 891 (citing 20 C.F.R.
§ 404.1520; Phillips v. Barnhart, 357 F.3d
1232, 1237-40 (11th Cir. 2004)). The claimant has the burden
of proof through step four and then the burden shifts to the
Commissioner at step five. Hines-Sharp v. Comm'r of
Soc. Sec., 511 F. App'x 913, 915 n.2 (11th Cir.
found that Plaintiff met the insured status requirements
through March 31, 2015. (Tr. at 34). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 25,
2010, the alleged onset date. (Tr. at 34). At step two, the
ALJ found that Plaintiff suffered from the following severe
impairments: cerebrovascular accident, chronic pain,
fibromyalgia, arthritis, degenerative disc disease, and
degenerative joint disease. (Tr. at 34). At step three, the
ALJ determined that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926). (Tr. at 36).
review of the record, the ALJ determined that Plaintiff had
the residual functional capacity (“RFC”) to
perform “sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except claimant is limited to only
occasional work in close proximity to moving mechanical
parts.” (Tr. at 36).
four, the ALJ determined that Plaintiff is capable of
performing her past relevant work as a telemarketer and
appointment clerk, finding that this work does not require
the performance of work-related activities precluded by
Plaintiff's RFC. (Tr. at 42). Specifically, the ALJ
stated that “the vocational expert testified that the
claimant has past work as a Telemarketer, DOT #299.357-014,
which is performed at the sedentary exertional level and has
an SVP of 3; and Appointment Clerk, DOT #237.367-010, which
is performed at the sedentary exertional level and has an SVP
of 3.” (Tr. at 42). The ALJ stated that “[t]he
vocational expert testified that a hypothetical individual
with the above RFC would be able to perform the jobs of both
telemarketer and appointment clerk.” (Tr. at 42).
Accordingly, in comparing the Plaintiff's RFC with the
physical and mental demands of this work, the ALJ found that
Plaintiff was able to perform it as generally performed. (Tr.
the ALJ determined at step four that Plaintiff could perform
past relevant work, the ALJ did not proceed to make findings
for step five. (See Tr. at 42-43). The ALJ concluded
that Plaintiff was not under a disability from August 25,
2010, through the date of the decision. (Tr. at 43).
Standard of Review
scope of this Court's review is limited to determining
whether the ALJ applied the correct legal standard,
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial
evidence, 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., the evidence must do more than merely create a
suspicion of the existence of a fact, and must include 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) (citing
Richardson, 402 U.S. at 401; Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
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 the finder
of fact, and even if the reviewer finds that “the
evidence preponderates against” the Commissioner's
decision. Edwards v. Sullivan, 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
evidence as a whole, taking into account evidence favorable
as well as unfavorable to the decision. Foote, 67
F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (holding the court must scrutinize
the entire record to determine reasonableness of factual
argues three ...