United States District Court, M.D. Florida, Jacksonville Division
OPINION AND ORDER
DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE.
Tara Ann Lindsey Schwab, seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (“SSA”) denying her claim for a
period of disability, Disability Insurance Benefits
(“DIB”), and Supplemental Security Income
(“SSI”). The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.”
followed by the appropriate page number), and the parties
filed memoranda setting forth their respective positions. For
the reasons set out 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, Standard of Review,
Procedural History, and the ALJ's
Social Security Act Eligibility
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which 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), 1382(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. The impairment must be
severe, making the claimant unable to do her previous work,
or any other substantial gainful activity which exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511,
Standard of Review
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 and is
such relevant evidence as a reasonable person would accept as
adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner's findings, we
must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm'r,
363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997));
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990). In conducting this review, this Court may not reweigh
the evidence or substitute its judgment for that of the ALJ,
but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the
decision. Martin v. Sullivan, 894 F.2d 1329, 1330
(11th Cir. 2002); Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995). However, the District Court will
reverse the Commissioner's decision on plenary review if
the decision applied incorrect law, or if the decision fails
to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v.
Dep't of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994). The Court reviews de novo the
conclusions of law made by the Commissioner of Social
Security in a disability benefits case. Social Security Act,
§ 205(g), 42 U.S.C. § 405(g).
must follow five steps in evaluating a claim of disability.
20 C.F.R. §§ 404.1520, 416.920. At step one, the
claimant must prove that she is not undertaking substantial
gainful employment. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any
substantial gainful activity, she will be found not disabled.
20 C.F.R. § 404.1520(a)(4)(i).
two, the claimant must prove that she is suffering from a
severe impairment or combination of impairments.
Doughty, 245 F.3d at 1278, 20 C.F.R. §
1520(a)(4)(ii). If the claimant's impairment or
combination of impairments does not significantly limit her
physical or mental ability to do basic work activities, the
ALJ will find that the impairment is not severe, and the
claimant will be found not disabled. 20 C.F.R. §
three, the claimant must prove that her impairment meets or
equals one of impairments listed in 20 C.F.R. Pt. 404, Subpt.
P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R.
§ 1520(a)(4)(iii). If she meets this burden, she will be
considered disabled without consideration of age, education
and work experience. Doughty, 245 F.3d at 1278.
four, if the claimant cannot prove that her impairment meets
or equals one of the impairments listed in Appendix 1, she
must prove that her impairment prevents her from performing
her past relevant work. Id. At this step, the ALJ
will consider the claimant's RFC and compare it with the
physical and mental demands of her past relevant work. 20
C.F.R. § 1520(a)(4)(iv), 20 C.F.R. § 1520(f). If
the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
five, the burden shifts to the Commissioner to prove that the
claimant is capable of performing other work available in the
national economy, considering the claimant's RFC, age,
education, and past work experience. Doughty, 245
F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If the claimant
is capable of performing other work, she will be found not
disabled. Id. In determining whether the
Commissioner has met this burden, the ALJ must develop a full
and fair record regarding the vocational opportunities
available to the claimant. Allen v. Sullivan, 880
F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which
the ALJ may make this determination. The first is by applying
the Medical Vocational Guidelines (“the Grids”),
and the second is by the use of a vocational expert
(“VE”). Phillips v. Barnhart, 357 F.3d
1232, 1239 (11th Cir. 2004). Only after the Commissioner
meets this burden does the burden shift back to the claimant
to show that she is not capable of performing the
“other work” as set forth by the Commissioner.
Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir.
protectively filed applications for DIB and SSI on May 31,
2013. (Tr. 14, 29). Although the Administrative Law Judge
(“ALJ”) wrote that the claimant alleged a
disability onset date of September 1, 2012, Plaintiff alleged
a disability onset date of September 9, 2011, in her SSI
application, and an onset date of September 1, 2012, in her
DIB application. (Tr. 14, 42, 225, 227, 263, 278).
Plaintiff's applications were denied initially and upon
reconsideration. (Tr. 144-46, 147-49, 157-61, 164-68).
Plaintiff requested a hearing and, on September 24, 2015, a
hearing was held before ALJ Teresa J. McGarry (“the
ALJ”). (Tr. 36-84). On November 4, 2015, the ALJ
entered a decision finding that Plaintiff had not been under
a disability from September 1, 2012, through the date of the
decision. (Tr. 14-35). Plaintiff requested review of the
ALJ's decision and, on January 14, 2016, Plaintiff's
request for review was denied. (Tr. 1-6). Plaintiff initiated
the instant action by Complaint (Doc. 1) on March 18, 2016.
The case is now ripe for review pursuant to 42 U.S.C. §
Summary of the ALJ's Decision
one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since September 1, 2012, the alleged onset date. (Tr. 16). At
step two, the ALJ found that Plaintiff had the following
severe impairments: cervical and lumbar degenerative disc
disease, bilateral knee osteoarthritis, and obesity. (Tr.
16). At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that meets or
medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
proceeding to step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”) to perform
less than light work as defined in 20 CFR 404.1567(b) and
416.967(b). The claimant is capable of: occasionally
lifting/carrying twenty pounds; frequently lifting/carrying
10 pounds; standing or walking four hours of an eight hour
workday; and sitting six hours of an eight hour workday. She
is restricted to occasionally climbing ramps/stairs,
balancing, stooping, kneeling, crouching, and crawling. She
cannot climb ladders/ropes/scaffolds. The claimant should
avoid hazards. She cannot lift overhead.
(Tr. 20). At step four, the ALJ relied on the testimony of a
vocational expert (“VE”) to find that Plaintiff
was capable of performing her past relevant work as a
customer service representative, data entry clerk, and help
desk representative, as this work does not require the
performance of work-related activities precluded by
Plaintiff's RFC. (Tr. 28). The ALJ concluded that
Plaintiff had not been under a disability from September 1,
2012, the alleged onset date, through the date of the
decision, November 4, 2015. (Tr. 28).
presents two main arguments on appeal. First, Plaintiff
contends that the ALJ erred by according greater weight to
the opinions of non-examining physicians than she did to the
opinions of treating physicians. (Doc. 24 p. 10). Second,
Plaintiff argues that the ALJ erred because her consideration
of Plaintiff's pain and subjective symptoms involved