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Mitchell v. Berryhill

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

September 14, 2017

FREDDIE LEE MITCHELL, II, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT UNITED STATES MAGISTRATE JUDGE.

         I. Status

         Freddie Lee Mitchell, II (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying his claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of injury to the back, knee, shoulder, hand, and meniscus; “[m]igraines ([c]oncussions)”; “[m]emory [i]ssues”; and depression. Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed August 31, 2016, at 67-68, 76-77, 88, 98, 281 (emphasis omitted). On January 12, 2012, Plaintiff filed applications for DIB and SSI, alleging an onset disability date of August 31, 2005. Tr. at 67-75 (DIB), 76-85 (SSI). Plaintiff's applications were denied initially, see Tr. at 67-75, 86, 112-16, 123 (DIB); 76-85, 87, 117-22, 124 (SSI), and were denied upon reconsideration, see Tr. at 88-97, 108, 127-31, 137 (DIB); 98-107, 109, 132-36, 138 (SSI).

         On June 4, 2014, an Administrative Law Judge (“ALJ”) held a hearing, during which the ALJ heard testimony from a vocational expert (“VE”). Tr. at 50-66. Plaintiff's counsel was present at the hearing, but Plaintiff was unable to appear due to problems with the phone system at the prison where he was being held. See Tr. at 52-53, 311. At the beginning of the hearing, Plaintiff's counsel represented that Plaintiff had given him permission to proceed in his absence. Tr. at 53. Following the hearing, the ALJ issued a Decision on July 9, 2014, finding Plaintiff not disabled through the date of the ALJ's Decision. Tr. at 28-38.

         The Appeals Council then accepted additional evidence consisting of prison records, Tr. at 265-67, and three letters from Plaintiff: one dated May 4, 2015, Tr. at 315, one dated May 5, 2015, Tr. at 316-17, and one dated November 9, 2015, Tr. 320-21. See Tr. at 11. On February 3, 2016, the Appeals Council denied Plaintiff's request for review, Tr. at 6-9, thereby making the ALJ's Decision the final decision of the Commissioner. On June 30, 2016, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)[3] by filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         Plaintiff raises two issues on appeal: “whether the Social Security Administration deprived [Plaintiff] of his due process right to a fair hearing when it conducted a hearing in his absence which was caused by conditions out of his control”; and “whether the [ALJ's] Decision is based upon the substantial evidence of record.” Plaintiff's Memorandum in Support of his Appeal of a Decision Denying his Application for Disability Insurance Benefits (Doc. No. 14; “Pl.'s Mem.”), filed October 26, 2016, at 10-11 (emphasis and some capitalization omitted); see Pl.'s Mem. at 12-16 (argument as to first issue), 16-21 (argument as to second issue).[4] On February 14, 2017, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 20; “Def.'s Mem.”) addressing the issues raised by Plaintiff. After a thorough review of the entire record and consideration of the parties' respective filings, the undersigned finds that the Commissioner's final decision is due to be reversed and remanded for further administrative proceedings.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [5] 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 30-37. At step one, the ALJ determined that “[Plaintiff] has not engaged in substantial gainful activity since August 31, 2005, the alleged onset date.” Tr. at 30 (emphasis and citations omitted). At step two, the ALJ found that “[Plaintiff] has the following severe impairments: post-concussion syndrome, migraine headaches, cervical and lumbar spine degenerative arthritis, right knee arthritis status post 2006 arthroscopic surgery, and bilateral shoulder acromioclavicular (AC) separation.” Tr. at 30 (emphasis and citations 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 32-33 (emphasis and citations omitted).

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

[Plaintiff can] perform a limited range of light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b); specifically, [Plaintiff] can lift and/or carry [twenty] pounds occasionally, [ten] pounds frequently, and stand and/or walk [six] hours and sit [six] hours in an [eight]-hour workday. However, he can only frequently push or pull with the bilateral upper extremities; frequently stoop, kneel, crouch, crawl, or climb ramps and stairs; and occasionally climb ladders, ropes, and scaffolds.

Tr. at 33 (emphasis omitted). At step four, the ALJ found that “[Plaintiff] is unable to perform any past relevant work.” Tr. at 36 (emphasis and citations omitted). At step five, after considering Plaintiff's age (“26 years old . . . on the alleged disability onset date”), education (“at least a high school education”), work experience, and RFC, the ALJ relied on the testimony of the VE and found “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform, ” Tr. at 36 (emphasis and citations omitted), including “Fast Food Worker, ” “Café Server, ” and “Hotel Housekeeper, ” Tr. at 37. The ALJ concluded “[Plaintiff] has not been under a disability . . . from August 31, 2005, through the date of th[e D]ecision.” Tr. at 37 (emphasis and citations 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. Discussion

         As indicated above, Plaintiff raises two issues before this Court. The first concerns Plaintiff's absence at his hearing, and the second concerns the ALJ's assessment of the medical opinions. The undersigned addresses Plaintiff's first issue and concludes remand is necessary because Plaintiff was deprived of the right to personally appear and testify at his hearing, and he was prejudiced as a result. Remand on these grounds will likely impact the findings related to Plaintiff's second argument because Plaintiff did not have an opportunity to provide testimony that may have altered the ALJ's assessment of the medical opinions. Thus, it is unnecessary to substantively address Plaintiff's second argument. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (declining to address certain issues because they were likely to be reconsidered on remand); Demenech v. Sec'y of the Dep't of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need not be addressed when the case would be remanded on other issues).

         The undersigned first sets out the applicable law. Then, the undersigned discusses whether Plaintiff waived his right to personally appear at his hearing and whether prejudice resulted.

         A. ...


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