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Schwab v. Berryhill

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

September 20, 2017

TARA ANN LINDSEY SCHWAB, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.[1]

          OPINION AND ORDER

          DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. Social Security Act Eligibility, Standard of Review, Procedural History, and the ALJ's Decision

         A. Social Security Act Eligibility

         The law 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, 416.905-416.911.

         B. Standard of Review

         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 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).

         The ALJ 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).

         At step 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. § 1520(c).

         At step 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.

         At step 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.

         At step 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. 2001).

         C. Procedural History

         Plaintiff 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. § 405(g).

         D. Summary of the ALJ's Decision

         At step 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. (Tr. 19).

         Before 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).

         II. Analysis

         Plaintiff 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 numerous ...


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