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Gersic v. Commissioner of Social Security

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

August 28, 2017

LINDA GERSIC, Plaintiff,



         Plaintiff Linda Gersic appeals the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability insurance benefits (“DIB”). For the reasons discussed herein, the decision of the Commissioner is AFFIRMED.

         I. Issues on Appeal

         Plaintiff raises two issues on appeal:[1] (1) whether substantial evidence supports the determination of the Administrative Law Judge (“ALJ”) concerning Plaintiff's residual functional capacity (“RFC”) with respect to her (a) need for a handheld assistive device, (b) chronic pain, (c) obesity, (d) mental impairment and (e) allergy impairment; and (2) whether there is sufficient evidence of bias by the ALJ to warrant remand.

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

         Plaintiff filed an application for DIB[2] on September 5, 2011. Tr. 133. Plaintiff's application alleges disability beginning on June 30, 2008, the same date as her date last insured, due to ankle injury, knee injury, neck injury, dyslexia, anxiety and manic depressive disorder. Tr. 133, 180. The Social Security Administration denied the claim initially on October 20, 2011 and upon reconsideration on November 29, 2011. Tr. 95-99, 105-10. Plaintiff then requested a hearing before an ALJ, and she received a hearing before ALJ Larry J. Butler on August 7, 2013, during which she was represented by an attorney. Tr. 31-58, 111-12. Plaintiff testified at the hearing. See Tr. 33-58.

         On November 12, 2014, the ALJ issued a decision finding Plaintiff was not disabled from June 30, 2008, the alleged onset date, through June 30, 2008, the date last insured, and denying her claim. Tr. 14-25. The ALJ first discussed in detail Plaintiff's motion for recusal, denied the motion and declined to withdraw. Tr. 14-17. Next, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act on June 30, 2008. Tr. 19. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from June 30, 2008 through June 30, 2008. Id. At step two, the ALJ found Plaintiff had the following severe impairments: status post right ankle fracture with open reduction internal fixation surgery, status post cervical spine fusion, left knee osteoarthritis and tear and allergies. Tr. 19, 22. The ALJ also discussed whether Plaintiff's depression met the definition of a severe impairment and determined it did not. Tr. 19-20. At step three, the ALJ found that through the date last insured, June 30, 2008, Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” Id.

         Taking into account all relevant evidence, the ALJ then determined that through the date last insured, June 30, 2008, Plaintiff had the RFC to perform light work, [3] except that she could “lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours in an 8-hour workday, and sit 6 hours in an 8hour workday. She could frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl and occasionally climb ladders, ropes, or scaffolds.” Tr. 20, 24.

         The ALJ concluded that through the date of last insured, Plaintiff was capable of performing her past relevant work as an auditor, real estate agent or salesperson, none of which required performance of work-related activities precluded by Plaintiff's RFC. Tr. 23. Accordingly, the ALJ found Plaintiff was not under a disability from June 30, 2008, the alleged onset date, through June 30, 2008, the date last insured. Tr. 24.

         Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which also considered Plaintiff's allegations of bias. Tr. 1-10. The Appeals Council denied Plaintiff's request for review on June 13, 2016. Tr. 1-7. Accordingly, the ALJ's November 12, 2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on August 12, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 10, 11.

         III. Social Security Act Eligibility and Standard of Review

         A claimant is entitled to disability benefits when she 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. Id. 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 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. Su livan, 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. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         IV. Discussion

         A. Whether substantial evidence supports the determination of the ALJ concerning Plaintiff's RFC

         Plaintiff's sole substantive issue on appeal concerns whether the ALJ's RFC finding is supported by substantial evidence. See generally Doc. 16. Specifically, Plaintiff alleges the ALJ erred by failing to account for her limitations arising from her need for a hand-held assistive device (“HHAD”), chronic pain, obesity, mental impairments and severe allergies. Docs. 16 at 15-25, 20 at 3-7. The Commissioner responds that as of the date Plaintiff was last insured, June 30, 2008, Plaintiff did not provide time-relevant evidence to support her disability, and substantial evidence supports the ALJ's decision. Doc. 17 at 9.

         In DIB cases such as the case under review here, a claimant must show she was disabled before the expiration of her insured status, which here is June 30, 2008, the same date as Plaintiff alleges her disability began. See 42 § U.S.C. §§ 416, 423; Tr. 14; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she [was] insured.”) (citing 42 U.S.C. § 423(a)(1)(A); Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981)); see also, Jenkins v. Comm'r of Soc. Sec., No. 6:14-cv-377-Orl-41DAB, 2015 WL 413112, at *13 (M.D. Fla. Jan. 30, 2015) (“To be eligible for DIB, a claimant must show that he became disabled prior to the expiration of his insured status.”) “In order to be entitled to disability benefits, [a claimant] must have applied for benefits while disabled or no later than twelve months after the month in which [her] period of disability ended.” Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). See 20 C.F.R. §§ 404.315(a)(3), 404.320(b)(3), 404.621(d). See also 20 C.F.R. §404.320(a) (“A period of disability is a continuous period of time during which you are disabled.”)

         Although here the alleged onset date and date last insured are the same, the Court does not take the narrow view the Commissioner appears to urge, that the sole date to consider is June 30, 2008; and if Plaintiff did not provide any records for that date or there was no traumatic event that occurred on that date, she cannot prove she was disabled. Doc. 17 at 1. Nor did the ALJ do so in this case. As noted, Plaintiff's date last insured is June 30, 2008. Tr. 19. She applied for disability on September 5, 2011. Tr. 133. Accordingly, she would need to show she was disabled as of her insured status date and continuously through September 5, 2011. See Wilson, 284 F.3d at 1226. The ALJ properly considered whether the record supported that Plaintiff was disabled as of her date last insured, and determined she was not. Tr. 17-25.

         The RFC refers to the most that a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a). The ALJ is required to assess a claimant's RFC based on all of the relevant evidence in the record, including any medical history, medical signs and laboratory findings, the effects of treatment, daily activities, lay evidence, and medical source statements. Id. At the hearing level, the ALJ has the responsibility of assessing a claimant's RFC. See 20 C.F.R. § 404.1546(c). The determination of RFC is within the authority of the ALJ, and the claimant's age, education, and work experience is considered in determining the claimant's RFC and whether she can return to her past relevant work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)). The RFC assessment is based upon all the relevant evidence of a claimant's remaining ability to do work despite her impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004); Lewis, 125 F.3d at 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)).

         Here, the ALJ discussed Plaintiff's testimony, reports and medical records, and determined that during the period at issue, there was “insufficient medical evidence in the record to establish that [Plaintiff's] impairments were severe enough to prevent her from performing substantial gainful activity.” Tr. 22. With respect to the relevant time period, the ALJ stated:

The undersigned notes that there is considerable evidence showing that [Plaintiff] received treatment for her impairments after the expiration date of her date last insured, which was June 30, 2008. [Plaintiff] alleged that her disability began on the same date as her date last insured for Title II benefits. [Plaintiff] has reported that her medical conditions have worsened since June 30, 2008. However, [Plaintiff] must establish that her impairments reached disabling severity prior to the expiration of her insured status.
. . .
The bulk of the evidence provided is for treatment subsequent to [Plaintiff's] date last insured. [Plaintiff] needed to establish that her impairments reached disabling status prior to the expiration ...

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