United States District Court, M.D. Florida, Fort Myers Division
SUSAN EACHUS, o/b/o Barry Kevin Thompson (deceased), Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
MCCOY, UNITED STATES MAGISTRATE JUDGE
the Court is the Complaint (Doc. 1) filed on May 25, 2016.
Counsel for the original Plaintiff Barry Kevin Thompson filed
a Suggestion of Death and a Motion for Substitution of
Parties (Doc. 23) on May 30, 2017. The Court allowed the
requested substitution. (See Doc. 24). For purposes
of this Opinion and Order, the Court will refer to Susan
Eachus as “Plaintiff” and Barry Kevin Thompson as
seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“SSA”) denying a claim for disability and
disability insurance benefits. Even though the parties failed
to address the issue of whether all of the claims in this
action survive the death of Mr. Thompson, the Court must
consider whether all of the claims raised survive Mr.
Thompson's death. See Fed. R. Civ. P. 25. The
Court finds that a claim for disability insurance benefits
survives the death of the claimant. See Fowler v.
Astrue, No. 809- CV-1368T-27MAP, 2010 WL 454765, at *1
(M.D. Fla. Feb. 9, 2010). Thus, Plaintiff may proceed on her
claim for disability insurance benefits.
also asserts a claim under supplemental security income.
(See Doc. 19 at 1). Pursuant to 42 U.S.C. §
1383(b)(1)(A), generally a claimant's claim for
supplemental security income extinguishes upon a
claimant's death. See also 20 C.F.R. §
416.542(b)(1)-(4) (no benefits under supplemental security
income may be paid to an estate of a deceased claimant unless
to a surviving eligible spouse or eligible parent of a
disabled or blind child). In this case, the Court finds that
Plaintiff's claim for supplemental security income does
not survive Mr. Thompson's death. Thus, the only
remaining claim relates to judicial review of the
Commissioner's decision as to disability and disability
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
forth herein, the decision of the Commissioner is
AFFIRMED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, the ALJ Decision, and
Standard of Review
law 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 his 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).
24, 2011, Claimant filed an application for disability and
for supplemental security income, asserting an onset date of
August 14, 2010. (Tr. at 81, 82, 238-46). Claimant's
applications were denied initially on August 2, 2011, and on
reconsideration on September 14, 2011. (Id. at 81,
82, 103, 104). A hearing was held before Administrative Law
Judge (“ALJ”) Larry J. Butler on September 16,
2013. (Id. at 35-80). The ALJ issued an unfavorable
decision on August 19, 2014. (Id. at 13-26). The ALJ
found Claimant not to be under a disability from August 14,
2010, through the date of the decision. (Id. at 13).
April 4, 2016, the Appeals Council denied Claimant's
request for review. (Id. at 1-6). Claimant filed a
Complaint (Doc. 1) in the United States District Court on May
25, 2016. 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 he 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) can perform his 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.
found that Claimant met the insured status requirements
through December 31, 2013. (Tr. at 15). At step one of the
sequential evaluation, the ALJ found that Claimant had not
engaged in substantial gainful activity since August 14,
2010, the alleged onset date. (Id.). At step two,
the ALJ found that Claimant suffered from the following
degenerative disc disease of the lumbar spine status post
fusion surgery; status post remote cervical fusion in 1996;
thoracic degenerative disease; and isolated seizures possibly
related to alcohol abuse (20 CFR §§ 404.1520(c) and
(Id.). At step three, the ALJ determined that
Claimant did not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, subpt.
P, app. 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). (Tr. at 18). At
step four, the ALJ determined that Claimant has the residual
functional capacity (“RFC”) to perform a wide
range of light work as follows:
the claimant can lift and carry, and push and pull, 20 pounds
occasionally and 10 pounds frequently. The claimant can sit
for 6 hours, and can stand and/or walk for 6 hours, over the
course of an 8-hour workday. The claimant can frequently
climb ramps and stairs but can never climb ladders, ropes and
scaffolds. The claimant can frequently stoop, kneel, crouch
and crawl. The claimant must avoid concentrated exposure to
vibration, and even moderate exposure to hazards such as
machinery and heights. The claimant has no manipulative,
visual or communicative limitations, and no mental
(Id.). The ALJ determined that Claimant was not
capable of performing his past relevant work as an
aluminum/metal fabricator and installer. (Id. at
24). After considering Claimant's age, education, work
experience, and RFC, the ALJ found that there are jobs that
exist in significant numbers in the national economy that
Claimant can perform. (Id.). The ALJ concluded that
Claimant was not under a disability from August 14, 2010,
through the date of the decision. (Id. at 25).
Standard of Review
scope of this Court's review is limited to determining
whether the ALJ applied the correct legal standard,
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial
evidence, 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., the evidence must do more than merely create a
suspicion of the existence of a fact, and must include 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) (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982);
Richardson, 402 U.S. at 401).
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 evidence
preponderates against” the Commissioner's decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358
(11th Cir. 1991). The district court must view the evidence
as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th
Cir. 1992) (court must scrutinize the entire record to
determine reasonableness of factual findings).
appeal, Plaintiff raises three (3) issues. As stated by
Plaintiff, they are:
1) The ALJ committed reversible error by failing to provide a
legally sufficient basis for rejecting the opinions of
[Claimant's] treating pain physicians, in violation of
SSR 96-2p; 20 C.F.R. §§ 404.1527(d), 416.927(d).
2) The ALJ committed harmful error when he found
[Claimant's] mental impairment was non-severe and trivial
within the meaning of 20 C.F.R. ...