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Lloyd v. Berryhill

United States District Court, M.D. Florida, Jacksonville Division

March 23, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT United States Magistrate Judge

         I. Status

         Anthony Tyrone Lloyd (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is the result of a condition affecting his back and legs. See Transcript of Administrative Proceedings (Doc. No. 7; “Tr.” or “administrative transcript”), filed March 4, 2016, at 445. Plaintiff filed applications for DIB and SSI on May 14, 2012, alleging in both an onset date of December 31, 2008. Tr. at 392-93 (DIB); Tr. at 399-400 (SSI). Plaintiff's applications were denied initially, Tr. at 325, 327-28 (DIB); Tr. at 326, 332-33 (SSI), and were denied upon reconsideration, Tr. at 340, 344-45 (DIB); Tr. at 341, 349-50 (SSI).

         On February 12, 2014, a hearing was held before an Administrative Law Judge (“ALJ”). Tr. at 2-33. At the hearing, Plaintiff's alleged onset date was amended to March 21, 2012. Tr. at 4-5. The ALJ heard testimony from a vocational expert (“VE”) and from Plaintiff, who was represented by counsel. Tr. at 3-33. On April 15, 2014, the ALJ issued a Decision finding Plaintiff not disabled “from March 21, 2012, through the date of th[e D]ecision, ” and denying Plaintiff's claims. Tr. at 256; see Tr. at 244-56. Plaintiff then requested review by the Appeals Council, Tr. at 263, and submitted to the Council additional medical records, Tr. at 39, 40, 42-239, 1105-25. On October 14, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. Tr. at 35-38. On December 18, 2015, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         On appeal, overall, Plaintiff argues that the ALJ failed to properly take all of Plaintiff's impairments into account and that the Appeals Council failed to consider relevant medical evidence submitted after the ALJ's Decision. See generally Plaintiff's Memorandum in Opposition to the Commissioner's Decision (Doc. No. 14; “Pl.'s Mem.”), filed June 6, 2016. Defendant filed a Memorandum in Support of the Acting Commissioner's Decision (Doc. No. 15; “Def.'s Mem.”) on August 2, 2016. After a thorough review of the entire record and the parties' respective memoranda, the undersigned finds that the Commissioner's final decision is due to be affirmed for the reasons discussed below.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [3] an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four, and at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         Here, the ALJ followed the five-step inquiry. See Tr. at 246-56. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since March 21, 2012, the amended alleged onset date.” Tr. at 246 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: lumbar degenerative disc disease, generally mild to moderate, status post surgery.” Tr. at 246 (emphasis and citation omitted). At step three, the ALJ ascertained 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. at 249 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”):

[Plaintiff can] perform light work . . . except he can never climb ropes, ladders or scaffolds. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. [Plaintiff] must avoid concentrated exposure to vibration, the use of moving machinery and exposure to unprotected heights. He is limited to occupations which do not require complex written or verbal communication. [Plaintiff] can perform simple, routine and repetitive tasks.

Tr. at 249 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a “Material Handler.” Tr. at 254 (emphasis and citation omitted). At step five, the ALJ considered Plaintiff's age (thirty-nine (39) years old on the alleged onset date), “limited education, ” work experience, and RFC, and the ALJ determined that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.” Tr. at 254-55 (emphasis and citation omitted). Relying on the testimony of the VE, the ALJ identified as representative jobs a “Cleaner, housekeeping”; an “Assembler, small products I”; and a “Bagger.” Tr. at 255 (some capitalization omitted). The ALJ concluded that Plaintiff “has not been not under a disability . . . from March 21, 2012, through the date of th[e D]ecision.” Tr. at 256 (emphasis and citation omitted).

         III. Standard of Review

         This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ's conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.'” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.'” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation omitted). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

         IV. Discussion

         Plaintiff raises basically two main issues on appeal: (A) whether the ALJ's hypothetical question posed to the VE failed to take into account all of Plaintiff's impairments; and (B) whether the Appeals Council erred by failing to consider “the post-[D]ecision medical evidence.” Pl.'s Mem. at 9-10. These two issues are addressed separately below.

         To the extent Plaintiff attempts to raise other issues-such as whether the ALJ failed to weigh medical opinions in the record or failed to consider the necessity of a sit/stand option-such issues are deemed to be waived for lack of development. See, e.g., N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (stating that “[i]ssues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived”); see also T.R.C. ex rel. Boyd v. Comm'r, 553 F. App'x 914, 919 (11th Cir. 2014) (citing McClain in a Social Security appeal and noting that the appellant “fail[ed] to develop any arguments demonstrating that the ALJ erred in his conclusions . . .”).

         A. VE Hypothetical

         An ALJ poses a hypothetical question to a VE as part of his step-five determination of whether the claimant can obtain work in the national economy. See Wilson, 284 F.3d at 1227. When the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC assessment in the ALJ's written decision to the adequacy of the RFC description contained in the hypothetical posed to the VE. Corbitt v. Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished) (citation omitted).

         In determining an individual's RFC and later posing a hypothetical to a VE that includes the RFC, the ALJ “must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” SSR 96-8P, 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1545(a)(2); Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985) (stating that “[w]here a claimant has alleged a multitude of impairments, a claim . . . may lie even though none of the impairments, considered individually, is disabling” (internal quotation and citations omitted)); Wilson, 284 F.3d at 1227 (stating that “for a [VE]'s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments” (citation omitted)).

         Here, the hypothetical that the ALJ posed to the VE and later relied on in the Decision comprised the same limitations as set forth in the RFC finding stated in the Decision. See Tr. at 26-27 (hypothetical to VE), 249 (RFC finding). Specifically, the ALJ described the following hypothetical individual to the VE:

This individual would . . . [be l]imited to work at the light exertional level, defined as lifting up to 20 pounds occasionally, lift/carry up to 10 pounds frequently, standing, walking for about six hours and sitting for up to six hours in an eight-hour workday with normal breaks. In addition, limited to no climbing of ladders, ropes or scaffolds, limited to occasional climbing of ramps or stairs, limited to occasional balancing, occasional stooping, occasional kneeling, occasional crouching and occasional crawling. Also must avoid concentrated exposure to vibration. Must avoid concentrated use of moving machinery and must avoid concentrated exposure to unprotected heights. Also limited to occupations which do not require complex, written or verbal communication. And the individual is able to perform simple, routine and repetitive tasks.

Tr. at 27.

         Plaintiff asserts that the hypothetical presented to the VE “did not include appropriate restrictions and limitations as to [Plaintiff's] physical and psychiatric state/condition.” Pl.'s Mem. at 6. Specifically, Plaintiff states that the hypothetical “did not in any way take into consideration the necessity of a sit/stand option at will, the use of a cane while standing and/or ambulating, or the effects of medications with regard to focus, concentration, pace, and persistence.” Id. at 9. ...

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