United States District Court, N.D. Florida, Gainesville Division
DAUNTA L. D. WILLIAMS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
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.
Procedural History and Facts
filed an application for Supplemental Security Income (SSI)
on June 25, 2013, alleging a disability beginning on November
1, 2011. Tr. 168-73. 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.
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.
Findings of the ALJ
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.
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.
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
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
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.
Relevant Medical and Other Evidence
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.
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.
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. 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.
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.
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.
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.
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,  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.
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 ...