United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
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
Issues on Appeal
raises two issues on appeal: (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.
Procedural History and Summary of the ALJ's
filed an application for DIB 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.
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
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,  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.
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.
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.
Social Security Act Eligibility and Standard of
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.
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
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)).
Whether substantial evidence supports the determination of
the ALJ concerning Plaintiff's RFC
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
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
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.
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)).
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
. . .
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 ...