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Thompson v. Berryhill

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

August 21, 2017

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

          OPINION AND ORDER [2]

          JAMES R. KLINDT, United States Magistrate Judge

          I. Status

          Roger Thompson (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying his claim for disability insurance benefits (“DIB”). Plaintiff's alleged inability to work is a result of a “[p]late and pins [in the] pelvic area, ” a “metal rod in [the] back, ” and “diabetes.” Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed August 10, 2016, at 53 (some capitalization omitted); see also Tr. at 62, 166. On September 13, 2012, Plaintiff filed an application for DIB, alleging an onset disability date of September 4, 2012. Tr. at 143-46. Also on September 13, 2012, Plaintiff submitted an amendment to the application, in which he alleged a new onset disability date of August 31, 2012. Tr. at 147-48. Plaintiff's application was denied initially, see Tr. at 53-59, 61, 72-77, and was denied upon reconsideration, see Tr. at 62-70, 71, 82-87.

         On September 15, 2014, an Administrative Law Judge (“ALJ”) held a hearing, during which the ALJ heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 23-52. The ALJ issued a Decision on November 7, 2014, finding Plaintiff not disabled through the date of the Decision. Tr. at 10-18. On April 27, 2016, the Appeals Council denied Plaintiff's request for review, Tr. at 1-3, thereby making the ALJ's Decision the final decision of the Commissioner. On May 23, 2016, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         Plaintiff makes one primary argument on appeal: that the ALJ “erred by not fully and fairly evaluating the medical evidence of record.” Memorandum in Support of Complaint (Doc. No. 16; “Pl.'s Mem.”), filed August 16, 2016, at 5 (emphasis and capitalization omitted). In support of this argument, Plaintiff contends the ALJ mistakenly found that Plaintiff had not been referred to a specialist, when in fact he had; and the ALJ found Plaintiff had refused an MRI, when in fact he had not. Id. at 6-8. Further, Plaintiff contends the ALJ inappropriately relied on the opinion of state agency consultant and non-examining physician Robert Whittier, M.D., because Dr. Whittier did not have all of the evidence of record before him when he rendered his opinion. Id. at 8-9. On December 9, 2016, Defendant filed a Memorandum in Support of the Acting Commissioner's Decision (Doc. No. 17; “Def.'s Mem.”) addressing the argument raised by Plaintiff. After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned determines that the Commissioner's final decision is due to be affirmed.

         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 sequential inquiry. See Tr. at 12-18. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since August 31, 2012, the alleged onset date.” Tr. at 12 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: diabetes mellitus, hypertension, status post multiple pelvic fractures with surgical repair, degenerative disc disease status post surgical repair, and degenerative joint disease.” Tr. at 12 (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 12 (emphasis and citation omitted).

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

[Plaintiff can] perform medium work as defined in 20 CFR [§] 404.1567(c) except: no climbing of ladders, ropes, and scaffolds; only occasional balancing, stooping, kneeling, crouching, crawling and climbing of ramps and stairs; must avoid concentrated exposure to vibration; and must avoid even moderate use of moving machinery or exposure to unprotected heights.

Tr. at 12-13 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a “highway worker.” Tr. at 16-17 (some emphasis, capitalization, and citation omitted). At step five, the ALJ considered Plaintiff's age (“62 years old . . . on the alleged disability onset date”), education (“a least a high school education and is able to communicate in English”), work experience, and RFC, and relied on the testimony of the VE to find Plaintiff is capable of performing work that exists in significant numbers in the national economy. Tr. at 17-18 (some emphasis omitted). Namely, the ALJ identified representative jobs of “Linen Room Attendant, ” “Hand Packager, ” and “Cook Helper.” Tr. at 18. The ALJ concluded that Plaintiff “has not been under a disability . . . from August 31, 2012, through the date of th[e D]ecision.” Tr. at 18 (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) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 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. ...

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