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Williams v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

November 9, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1]Defendant.



         This is a Social Security case referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's Title XVI application for Supplemental Security Income (SSI). After careful consideration of the entire record, it is respectfully recommended that the decision of the Commissioner be affirmed.

         I. Procedural History and Facts

         Plaintiff filed an application for Supplemental Security Income (SSI) on June 25, 2013, alleging a disability beginning on November 1, 2011. Tr. 168-73.[2] The application was denied initially, Tr. 108, and again on reconsideration. Tr. 114. A hearing was requested and held on May 13, 2015, before an administrative law judge (ALJ), at which Plaintiff was represented by attorney Pamela Dunmore. Tr. 29-72. At the hearing, Plaintiff amended his alleged onset of disability date to November 20, 2012. Tr. 33.

         On September 9, 2015, a decision was entered denying Plaintiff's application. Tr. 11-23. Plaintiff sought review in the Appeals Council, which denied review on December 29, 2016. Tr. 1-4. Thus, the decision of the ALJ became the final decision of the Acting Commissioner and is ripe for review. Accordingly, Plaintiff, represented by counsel, filed this complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1.

         II. Findings of the ALJ

         In the decision issued on September 9, 2015, the ALJ made findings pertinent to this review:

1. “The claimant has not engaged in substantial gainful activity since June 25, 2013, the application date (20 CFR 416.971 et seq.).” Tr. 13.
2. “The claimant has the following severe impairments: systemic lupus erythematosus, history of seizure disorder, asthma (20 CFR 416.920(c)).” Tr. 13. The ALJ found that the claimant's medically determinable mental impairments of mild neurocognitive disorder and adjustment disorder, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are thus nonsevere. Tr. 13.
3. “The claimant 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 (20 CFR 416.920(d), 416.925 and 416.926).” Tr. 15.
4. “After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except with no more than occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps, stairs, ladders, ropes, and scaffolds. The claimant must avoid concentrated exposure to dusts, fumes, odors, gases, and poor ventilation. The claimant must avoid even moderate exposure to hazards such as unprotected heights and dangerous machinery.” Tr. 15.
5. “The claimant has no past relevant work (20 CFR 416.965).” Tr. 21.
6. “The claimant was . . . 18 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).” Tr. 21.
7. “The claimant has a limited education and is able to communicate in English (20 CFR 415.964).” Tr. 21.
8. “Transferability of job skills is not an issue because claimant does not have past relevant work (20 CFR 416.968).” Tr. 21.
9. “Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).” Tr. 21. The ALJ concluded, based on the vocational expert's testimony, that Plaintiff can perform representative jobs such as office helper (DOT # 239.567-010) light, unskilled work, SVP 2 with 43, 000 nationwide positions; mail clerk (DOT # 209.687-026) light, unskilled work, SVP 2 with 35, 000 nationwide positions; cashier II (DOT # 211.462-010) light, unskilled work, SVP 2 185, 000 nationwide positions; and document preparer, microfilming (DOT # 249.587-018) light, unskilled work, SVP 2 with 45, 000 nationwide positions. The ALJ concluded that a finding of “not disabled” was appropriate. Tr. 22.
10. “The claimant has not been under a disability, as defined in the Social Security Act, since June 25, 2013, the date the application was filed (20 CFR 416.920(g)).” Tr. 22.

         Plaintiff's application for supplemental security income filed on June 25, 2013, was denied based on the ALJ's finding that he is not under a disability and is thus ineligible for SSI benefits under § 1614(a)(3)(A) of the Social Security Act.[3] Tr. 22.

         Plaintiff contends that the decision is not supported by substantial evidence and, in finding that there was work in the national economy that Plaintiff could perform, the ALJ failed to consider Dr. Martinko's evidence that Plaintiff's abilities vary depending on whether he is having joint pain and how recently he has had a medication infusion. ECF No. 20 at 22. Plaintiff argues that the ALJ ignored Dr. Martinko's opinion that, although Plaintiff's pain varies with time, his ability to function in a regular workplace environment and his ability to perform at a consistent pace without an unreasonable number and length of rest periods are seriously limited. Id. at 22-23. Plaintiff argues that although the ALJ recognized his history of migraines and sensitivity to light during a headache, the ALJ failed to include any loss of work time on a regular basis resulting from these impairments. Id. at 23-24. Plaintiff also takes issue with the ALJ's conclusion that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements about the intensity, persistence, and limiting effect of the symptoms are not entirely credible. Tr. 17. Plaintiff contends that substantial medical evidence of Dr. Martinko supports Plaintiff's testimony about the chronicity and level of his pain and his migraine headaches. ECF No. 20 at 28.

         The Acting Commissioner counters that the ALJ properly considered the relevant evidence in assessing Plaintiff's RFC and in evaluating Plaintiff's subjective statements concerning his disabling conditions. ECF No. 21 at 6. The Acting Commissioner contends that the ALJ properly relied on the opinion of the state agency consultant, Dr. Nicolas Bancks, who opined that Plaintiff could lift 20 pounds occasionally and ten pounds frequently, stand/walk/sit for six hours in an eight-hour workday, and perform other actions, with limitations, consistent with the RFC found by the ALJ. The Acting Commissioner also contends that Dr. Bancks' opinion is not inconsistent with Plaintiff's medical history of routine conservative treatment, adequate response to treatment with compliance, and clinical observations, or with results of physical examinations that failed to identify more substantial limitations. ECF No. 20 at 7.

         III. Relevant Medical and Other Evidence

         A. Hearing testimony

         Plaintiff testified at the May 13, 2015, hearing before the ALJ. Tr. 33-67. He was age 18 at the time of his application. Tr. 33. He lives with his mother and his siblings and has never worked. He did not graduate from high school due to his frequent hospital visits due to lupus and seizures in 2013. Tr. 35. Plaintiff testified that he cannot work because he gets tired very easily and has seizures and joint pain caused by his lupus. Tr. 36. He testified that he has not had a seizure for almost a year and that he has had four seizures between November 2012 and May 2015. Tr. 37-38. After a seizure, he has a migraine that can last all day. Tr. 38. He is taking medication for his seizures. Tr. 40. He was diagnosed with lupus, he believed, in 2011, and receives infusion medication for that condition. Tr. 41-42. He has also been prescribed CellCept for his lupus. Tr. 42. Plaintiff testified the lupus causes him to have drowsiness, joint pain, and stomach pain. Id.

         Plaintiff testified that when he was diagnosed, he was in high school and was on the football team and the basketball team. He said that he “participated, but [he] didn't play, ” although he was diagnosed with knee pain in 2012 from playing basketball. Tr. 43. Plaintiff testified that he also has asthma and takes Albuterol as needed. Tr. 45.

         When asked what limitations keep him from working, he identified fatigue and intermittent seizures. Tr. 46. He said he can lift but not continually, and has a bad shoulder from a sprain in 2011. Id. He said he has no problems sitting or standing but has constant stomach pain and chest pain.[4] Tr. 47-48. He was given a stress test to check his chest pain in 2011 but was not given any follow-up treatment. T. 48-49. He has knee pain if he bends or turns in a certain way or if he walks too long. Tr. 49. His ACL was reconstructed in 2011, but has had no treatment for knee pain since that time. Tr. 50.

         Plaintiff has been seeing his treating physician, Dr. Thomas Martinko at Shands. Tr. 52. Plaintiff testified that he has arm and leg joint pain every day, and it occurs mostly when he is getting out of bed. Tr. 54. He is often drowsy and will sleep four to five hours a day. Tr. 55. Plaintiff has also had a rash on his abdominal area and sores in his mouth which come and go but are very painful. Tr. 56. His last mouth sores were about two months before the hearing. Tr. 57. In 2012, his doctor recommended he be homeschooled and he did that for a short time. Tr. 55, 58. He resumed going to school on campus until he stopped about three months before graduation. Tr. 58-59, 34. Plaintiff testified that he has migraine headaches about once a week and they last at least two hours. Tr. 60. During a migraine, he has sensitivity to light. Id. When a migraine occurs, he must lie down and sleep in the hopes that when he wakes it will be gone. Id.

         Plaintiff testified that he has experienced depression and tried to commit suicide in 2014. Tr. 60-61. He saw someone for his depression for just over three months in 2014, but has not been treated since. Tr. 61-63. Plaintiff said he is taking medication prescribed by his rheumatologist Dr. Melissa Elder for depression. Tr. 63.

         Plaintiff described his daily routine as doing “nothing at all.” Tr. 64. He said after he tries to “clean up” his room, wash dishes, and take out the trash, he then sits down for the rest of the day to watch television. Id. He testified that he tries to play basketball about once a week for 30 minutes to one hour with friends in the neighborhood. Tr. 65. His mother does the shopping. Tr. 66. Plaintiff has a driver's license but only drives to go to the doctor. Id. He has no problem taking care of his personal needs. Id.

         Paul Dolan, a vocational expert, testified. Tr. 67. He was presented with a hypothetical question in which the person of the same age and education as Plaintiff is limited to performing work at a light exertional level, and who can only occasionally balance, stoop, kneel, crouch, crawl, and climb stairs, ramps, ladders, ropes, and scaffolding. Tr. 68. The hypothetical proposed that the person would have to avoid concentrated exposure to dust, fumes, odors, gasses, and poor ventilation, and even moderate exposure to hazards such as unprotected heights and dangerous machinery. Id. When asked if such a person could perform any work, the vocational expert testified that such a person could perform the jobs of office helper, DOT # 239.567-010, [5] SVP of 2, unskilled, light exertional level with approximately 43, 000 jobs in the national economy; mail clerk, DOT # 209.687-026, SVP of 2, unskilled, light exertional level, with approximately 35, 000 jobs in the national economy; cashier II, DOT # 211.462-010, SVP of 2, unskilled, light exertional level, with approximately 185, 000 jobs in the national economy; and document preparer, microfilming, DOT # 249.587-018, SVP of 2, unskilled, light exertional level, with approximately 45, 000 jobs in the national economy. Tr. 68-69.

         In a second hypothetical question, the ALJ asked the vocational expert to also assume that the person was further limited to performing only jobs that required simple, routine, repetitive tasks with simple instructions and involving simple work-related decisions with few changes in routine. Tr. 69. The vocational expert testified that these ...

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