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 Margaret Rojas'
Complaint (Doc. 1) filed on March 9, 2011. Plaintiff seeks
judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”)
denying her claims for disability insurance benefits and a
period of disability. 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 REVERSED AND REMANDED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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).
December 6, 2005, Plaintiff filed an application for a period
of disability and disability insurance benefits, alleging an
onset date of July 2, 1992. (Tr. at 55, 284). Plaintiff later
amended her alleged onset date to October 1, 1996. (Tr. at
15). Plaintiff's claims were denied initially on March
24, 2006 and on reconsideration on May 21, 2008. (Tr. at
55-56). Plaintiff sought review of those determinations.
After conducting a hearing, Administrative Law Judge
(“ALJ”) Jimmy N. Coffman issued an unfavorable
decision on April 15, 2009. (Tr. at 136-44). On January 21,
2011, the Appeals Council denied Plaintiff's request for
review. (Tr. at 152-55). On March 9, 2011, Plaintiff filed a
Complaint in this Court. (Doc. 1). On June 29, 2011, the
Honorable John E. Steele granted Defendant's Opposed
Motion to Remand. (Doc. 17 at 3). The Court remanded the case
pursuant to Sentence Six of 42 U.S.C. § 405(g) in order
to take all steps necessary to properly prepare the
administrative record in this case. (Id.).
remand, the Appeals Council vacated the ALJ's decision
and remanded Plaintiff's claim. (Tr. at 159-161). After a
hearing, ALJ Larry J. Butler issued an unfavorable decision
on August 25, 2011. (Tr. at 57-69). On August 7, 2012, the
Appeals Council assumed jurisdiction of the case and remanded
the case for further review. (Tr. at 70-74). After another
hearing, ALJ Butler issued an additional unfavorable decision
on April 22, 2014. (Tr. at 76-89). On February 23, 2015, the
Appeals Council again assumed jurisdiction and remanded the
case for further review. (Tr. at 90-95). After a further
hearing, ALJ T. Whitaker issued an unfavorable decision on
March 16, 2016. (Tr. at 11-32). Plaintiff subsequently
exhausted her administrative remedies. (Doc. 36 at 3; Doc. 38
filed an Answer (Doc. 24), the Transcript (Doc. 25), and an
unopposed motion to reopen the case (Doc. 26) on June 20,
2016. The case was reopened on June 22, 2016. (Doc. 27). The
parties filed Memoranda. (Docs. 36, 38). The parties
consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 33). 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) has the residual functional capacity
(“RFC”) to perform her past relevant work; and
(5) can perform other work of the sort found in the national
economy. 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.
first found that Plaintiff last met the insured status
requirements on March 31, 1998. (Tr. at 17). As a result, the
ALJ noted that Plaintiff must have established disability on
or before this date to be entitled to a period of disability
and disability insurance benefits. (Tr. at 15).
Plaintiff's alleged onset date is October 1, 1996. (Tr.
at 15). Thus, the relevant time period for evaluating
Plaintiff's claims is October 1, 1996 to March 31, 1998.
one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
from the alleged onset date of October 1, 1996 to March 31,
1998, the date last insured. (Tr. at 17).
two, the ALJ found that Plaintiff suffered from the following
severe impairments through the date last insured:
“degenerative disc disease of the cervical spine,
degenerative disc disease of the lumbar spine, history of
major depressive disorder, depression, and anxiety.”
(Tr. at 17).
the ALJ found that Plaintiff had a number of severe
impairments, which the evidence showed were severe
after the date last insured but for which there was
not a persuasive evidentiary basis to reasonably infer that
the impairments were medically determinable and severe during
the relevant period. (Tr. at 17). These impairments include:
chronic gastritis, chronic epigastric pain and dyspepsia,
facet syndrome, TLS nerve entrapment and muscle spasm,
fatigue, chronic back pain, radiculopathy, a history of
cervical, thoracic, and lumbar strain, irritable bowel
syndrome (IBS), menopausal syndrome, GERD, a history of low
grade gastritis, a history of gastritis secondary to H.
Pylori, a history of fibroid, gallstones with cholelithiasis,
chronic pain disorder associated with psychological factors,
SI joint dysfunction, a history of myofascial pain,
undeclared connective tissue disorder/fibromyalgia/myofascial
pain, polyarthralgia of unclear etiology, hyperprolactinemia,
headaches, sicca complex, fibromyalgia, iron deficiency
anemia, premenstrual syndrome, chronic back pain syndrome,
avoidant and dependent personality disorder, adjustment
disorder with anxiety, and allergies.
(Tr. at 17-18).
the ALJ found that Plaintiff's history of intestinal
dysbiosis, urinary tract infection, and leukocytosis were
considered non-severe as at all times. (Tr. at 18).
the ALJ found that Plaintiff's alleged rheumatoid
arthritis, lupus, cervical facet syndrome accompanied by
myofascitis and trigger points, cervical cranial syndrome,
cervicalgia, lumber facet syndrome accompanied by myofascitis
and trigger point formation, radiculitis, and sciatica were
non-medically determinable. (Tr. at 18).
three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments through the date
last insured 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 CFR §§ 404.1520(d), 404.1525,
404.1526). (Tr. at 18). The ALJ specifically considered
Listings 1.02, 1.04, 12.04, and 12.06. (Tr. at 18-20).
on the evidence, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform
“less than the full range of medium work” through
the date last insured. (Tr. at 20). Specifically, the ALJ
the claimant could have lifted, carried, pushed, or pulled 50
pounds occasionally and 25 pounds frequently. Claimant could
have sat, stood, or walked each for five hours in an
eight-hour workday. Claimant was limited to simple, routine,
and repetitive work with “simple” defined as
unskilled work tasks. Claimant was limited to work that would
have allowed the claimant to be off task five percent of the
workday in addition to regularly scheduled breaks. Claimant
was limited to a work environment free of fast-paced
production requirements. Claimant was limited to work with
only occasional workplace changes.
(Tr. at 20).
four, the ALJ determined that, through the date last insured,
Plaintiff was unable to perform any past relevant work. (Tr.
five, after considering Plaintiff's age, education, work
experience, and RFC, the ALJ determined that there were jobs
that existed in significant numbers in the national economy
that Plaintiff could have performed through the date last
insured. (Tr. at 30). Specifically, the ALJ noted that if
Plaintiff had the RFC to perform the full range of medium
work, a finding of “not disabled” would be
directed by Medical-Vocational Rule 203.29. (Tr. at 31). The
ALJ further noted, however, that Plaintiff's
“ability to perform all or substantially all of the
requirements of this level of work was impeded by additional
limitations.” (Tr. at 31). As a result, the ALJ asked
questions to a vocational expert (“VE”) to
determine the extent to which these additional limitations
erode the unskilled medium occupational base, through the
date last insured. (Tr. at 31). The VE testified that an
individual with Plaintiff's age, education, work
experience, and RFC would be able to perform the requirements
of representative occupations such as:
1. Transporter (Patient), DOT #355.677-014, which is
performed at the medium exertional level, has an SVP of 2,
and of which there are 98, 980 jobs in the national economy;
2. Self-Service Laundry Dry Cleaning Attendant, DOT
#369.677-010, which is performed at the medium exertional
level, has an SVP of 2, and of which there are 437, 610 jobs
in the national economy;
3. Stock Checker (Apparel), DOT #299.667-014, which is
performed at the light exertional level, has an SVP of 2, and
of which there are 88, 830 jobs in the national economy;
4. Office Helper, DOT #239.567-010, which is performed at the
light exertional level, has an SVP of 2, and of which there
are 71, ...