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O'Grady v. Berryhill

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

November 21, 2017

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



         This Social Security case was referred to the undersigned upon consent of the parties, ECF No. 8, by United States District Judge Mark E. Walker. ECF No. 9. 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 denying Plaintiff's application for a period of disability and Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act and Plaintiff's application for Supplemental Security Income (SSI) pursuant to Title XVI of the Act. See ECF No. 1. After careful consideration of the record, the decision of the Commissioner is affirmed.

         I. Procedural History and Facts

         On May 8, 2013, Plaintiff Thomas Daniel O'Grady filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. Tr. 184-92.[1] Both applications alleged disability beginning March 7, 2009. Id. The applications were based on neck injury and nerve damage, loss of feeling in his right arm, double vision, constant migraines, and poor circulation in his legs. Tr. 68. The applications were initially denied on June 25, 2013, and again on reconsideration on September 9, 2013. Tr. 123-34.

         Plaintiff requested a hearing, which was held before Administrative Law Judge (ALJ) Stephen C. Calvarese by video conference on April 16, 2015. Tr. 30-64. Plaintiff appeared in Gainesville, Florida, with counsel, Martin J. Goldberg. An impartial vocational expert, Ronald J. Spitznagel, also testified. Prior to the hearing, Plaintiff asked to amend the onset date to October 27, 2012, Tr. 264, which was granted by the ALJ on the day of the hearing. Tr. 33.

         The ALJ issued a decision on April 30, 2015, finding that Plaintiff has not been under a disability as defined in the Social Security Act. Tr. 14-24. Plaintiff's request for review by the Appeals Council was denied on November 23, 2016. Tr. 1-6. 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. § 1383(c)(3) and 42 U.S.C. § 405(g). See ECF No. 1.

         II. Findings of the ALJ

         The ALJ made the following pertinent findings:

1. “The claimant meets the insured status requirements of the Social Security Act through March 31, 2014.” Tr. 16.
2. “The claimant has not engaged in substantial gainful activity since October 27, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).” Tr. 16.
3. “The claimant has the following severe impairments: disorder of the cervical spine, migraine headaches, and poor near vision of 20/100 (20 CFR 404.1520(c) and 416.920(c)).” Tr. 16. The ALJ found that the Plaintiff also had several other non-severe impairments. Tr. 17.
4. “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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 17.
5. “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 404.1567(b) except the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently. The claimant can stand for 6 hours, walk for 6 hours, and sit for 6 hours in an 8-hour workday with normal breaks. The claimant can occasionally climb ladders, ropes, and scaffolds. He can frequently climb ramps and stairs. The claimant has unlimited balancing. He is able to perform frequent stooping; frequent crawling; unlimited kneeling, and unlimited crouching. The claimant is limited to frequent reaching overhead with both arms. He is limited to frequent grasping, handling, and gross manipulation with the right hand. The claimant needs to avoid concentrated exposure to extreme cold, humidity, vibration, and hazards (including machinery and heights). The claimant has poor near vision (20/100) and good far vision (20/40).” Tr. 18.
6. “The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).” Tr. 22.
7. “The claimant was . . . 50 years old, which is defined as an individual closely approaching advanced age, on the amended alleged disability onset date (20 CFR 404.1563 and 416.963).” Tr. 22.
8. “The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).” Tr. 22. Plaintiff testified at the hearing that he is a college graduate with a degree in fine arts. Tr. 33-34.
9. “The claimant has acquired work skills from past relevant work (20 CFR 404.1568 and 416.968).” Tr. 22.
10. “Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are not transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569(a), 404.1568(d), 416.969(a), and 416.968(d)).” Tr. 22-23. The ALJ found based on the vocational expert testimony that although Plaintiff cannot perform a full range of light work, he could perform the representative occupation of cleaner, housekeeping, DOT #323.687-014, light unskilled, SVP 2, with 750, 000 jobs available in the national economy. Tr. 23.
11. “The claimant has not been under a disability, as defined in the Social Security Act, from October 27, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).”

Tr. 23.

         Based on these findings, the ALJ found that Plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act and is not entitled to disability benefits. Tr. 24. The ALJ also found that Plaintiff is not disabled under section 1614(a)A(3)(A)[2] of the Social Security act and is thus not entitled to supplemental security income. Id.

         III. Legal Standards Guiding Judicial Review

         This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner's factual findings are conclusive if supported by substantial evidence.”[3] Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted). The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner, Bloodsworth, 703 F.2d at 1239, although the Court must scrutinize the entire record, consider evidence detracting from the evidence on which the Commissioner relied, and determine the reasonableness of the factual findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986). Review is deferential, but the reviewing court conducts what has been referred to as “an independent review of the record.” Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir. 1985).

         A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, “but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability to engage in 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 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled to disability insurance benefits if he or she is under a disability prior to the expiration of her insured status. See 42 U.S.C. § 423(a)(1)(A); Moore, 405 F.3d at 1211; Torres v. Sec'y of Health & Human Servs., 845 F.2d 1136, 1137-38 (1 st Cir. 1988); Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).

         Pursuant to 20 C.F.R. § 404.1520(a)(4)(i)-(v), [4] the Commissioner analyzes a claim in five steps:

1. Is the individual currently engaged in substantial gainful ...

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