United States District Court, N.D. Florida, Gainesville Division
JEREMY B. WAGNER, 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 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 applications for a period of disability and
Disability Insurance Benefits (DIB) pursuant to Title II of
the Social Security Act (Act) and Supplemental Security
Income (SSI) pursuant to Title XVI of the Act. After
consideration of the record, it is recommended that the
decision of the Commissioner be affirmed.
October 2, 2013, Plaintiff, Jeremy B. Wagner, filed
applications for SSI and DIB, respectively, alleging
disability beginning June 1, 1988 (age one and a half) based
on seizure and bipolar disorders; speech and language
impaired; depression, learning disabilities, ADHD; motor
skill-apraxia; reading problems; and seizure disorder ADHD
bipolar speech language skill-apraxia. Tr. 12, 168-75, 208,
applications were denied initially on February 26, 2014, Tr.
12, 97-98, 127-34, and upon reconsideration on May 8, 2014.
Tr. 12, 125-26, 142-48. On July 10, 2015, Plaintiff's
representative requested the ALJ to issue a record decision
without hearing. Tr. 165-67. On July 21, 2014, Plaintiff
requested a hearing. Tr. 12, 32-33, 155-56.
16, 2015, ALJ Stephen C. Calvarese held a video hearing. The
hearing exhibits were accepted without objection. Tr. 36.
Plaintiff appeared in Gainesville, Florida, and testified.
Tr. 37-56. Plaintiff's mother also testified, in part,
that there has never been a period of time that Plaintiff was
capable of living on his own without her assistance. She
explained the nature and extent of her daily assistance and
Plaintiff's activities, including special classes taken
by Plaintiff since kindergarten. Tr. 58-62. The ALJ presided
over the video hearing from Jacksonville, Florida. Tr.12,
34-71. Robert N. Strader, an impartial vocational expert
(VE), testified during the hearing. Tr. 12, 41-42, 62-69, 158
(Resume), 294 (vocational expert comments/past work summary).
N. Albert Bacharach, Jr., an attorney, represented Plaintiff.
Tr. 12, 34-37, 152-54. The ALJ gave Plaintiff's counsel
time to file a brief. Tr. 70.
August 7, 2015, the ALJ entered a decision and denied
Plaintiff's applications for benefits concluding that
Plaintiff was not disabled from January 1, 2010, through the
date of the decision. Tr. 12-26.
September 20, 2015, Plaintiff requested review of the
ALJ's decision and filed a one-page brief. Tr. 7-8,
295-96 (Exhibit 19E). On February 13, 2017, the Appeals
Council considered the reasons Plaintiff disagreed with the
ALJ's decision set forth in the brief submitted by
Plaintiff's attorney and concluded “that this
information does not provide a basis for changing the
[ALJ's] decision.” Tr. 1-6. The Appeals Council
denied Plaintiff's request for review of the ALJ's
decision making the ALJ's decision the final decision of
the Commissioner. See 20 C.F.R. § 416.1481.
April 14, 2017, Plaintiff filed a Complaint with the United
States District Court seeking review of the ALJ's
decision. ECF No. 1. The parties filed memoranda of law, ECF
Nos. 15, 16, which have been considered.
Findings of the ALJ
made several findings:
1. “The claimant meets the insured status requirements
of the Social Security Act through December 31, 2015.”
2. “The claimant has not engaged in substantial gainful
activity [SGA] since January 1, 2010, the date first
insured.” Id. The ALJ noted that Plaintiff
worked after the disability onset date but it did not rise to
the level of SGA. Id. Nevertheless, the ALJ
considered Plaintiff's certified earnings report from
2007 through 2012 and although the “earnings do not
constitute disqualifying [SGA], this work activity evidences
a perceived ability and willingness to work.” Tr. 15.
3. “The claimant has the following severe impairments:
neuro-developmental delay/cognitive disorder, attention
deficit disorder, mood disorder, and impulse control
disorder.” Tr. 15. The ALJ considered Plaintiff's
physical impairments including medical records that indicate
Plaintiff had seizures at 15 and 18 and the last seizure at
24 months old. Id. The ALJ noted that a DDS
physician opined that this impairment was nonsevere and that
Plaintiff “did not testify to limitations as a result
of his seizure disorder. He continues to engage in a wide
variety of activities including driving and working out with
very heavy weights. Accordingly, the undersigned finds the
claimant's seizure disorder imposes no more than minimal
limitations on his ability to perform basic work activity and
is nonsevere.” Id.
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, ” including the criteria of
Listings 12.02, 12.04, and 12.05. Tr. 15. The ALJ considered
the four broad functional areas set out in the disability
regulations for evaluating mental disorders known as the
“paragraph B” criteria (“paragraph D”
criteria of listing 12.05) and determined that Plaintiff had
mild restriction in activities of daily living;
moderate difficulties in social functioning and in
concentration, persistence, or pace; and no episodes
of decompensation, which have been of extended
duration. Tr. 16.
also considered the criteria of listing 12.05, paragraphs A
through C and stated:
Turning back to listing 12.05, the requirements in paragraph
A are met when there is mental incapacity evidenced by
dependence upon others for personal needs (e.g., toileting,
eating, dressing, or bathing) and inability to follow
directions, such that the use of standardized measures of
intellectual functioning is precluded. In this case, these
requirements are not met because the claimant has a high
level of adaptive functioning and he was capable of
participating in standardized testing. (Exhibit 1-F).
As for the “paragraph B” criteria, they are not
met because the claimant does not have a valid verbal,
performance, or full scale IQ of 59 or less. The
claimant's IQ scores are not less than 59. Furthermore,
his work history and adaptive functioning are at or above
borderline IQ levels.
Finally, the “paragraph C” criteria of listing
12.05 are not met because the claimant does not have a valid
verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional
and significant work-related limitation of function. In May
of 1991, the claimant received a full scale IQ score of 71 on
the Wechsler Preschool and Primary Scale of lntelligence
Revised. His composite score on the Stanford-Binet
Intelligence Scale was 77. In April of 1995 when the claimant
was 8 years old, his full scale IQ score was 60 on the
Wechsler Intelligence Scale for Children- 3rd Edition (WISC).
(Exhibit 1-F/115). This placed him in the mildly Mentally
Deficient range of intellectual functioning. It was noted he
stayed up late the night before testing and his sleepiness
may have influenced his ability to provide his best
performance. In contrast to this testing, when administered
the Stanford-Binet Intelligence Scale-Fourth Edition three
months later in August of 1995, the claimant's composite
score of 80 fell within the low average range. (Exhibit
Although the claimant did have an IQ score that was 60 when
he was eight years old, three months later, IQ testing placed
him in the low average range of intellectual functioning with
a score of 80. With the exception of his score on the WISC,
which was taken when he was sleepy, the claimant's IQ
scores are continually above 70. This is consistent with his
progress throughout high school, his work history, and his
ability to attend college classes. School records show the
additional assistance and his individualized education
program (IEP) helped him and by the time he graduated, he was
enrolled in 94 percent regular classes, attending
occupational therapy one time per week for 30 minutes and
speech/language therapy two times per week for 30 minutes.
(Exhibit 9-F). The claimant was able to participate in
college courses, though he did need extra time on tests. The
claimant lives alone in a condo that he owns. He is able to
drive and care for his dog. The claimant does not have
deficits of adaptive functioning consistent with mental
5. “[T]he claimant has the residual functional capacity
[RFC] to perform a full range of work at all exertional
levels but with the following nonexertional limitations: The
claimant has a poor ability to read, write, and use numbers.
He reads at a fourth grade level. The claimant is capable of
understanding and remembering simple instructions and
work-like procedures. Is limited to simple, routine tasks.
The claimant is able to relate adequately with others in the
workplace on a superficial level. He will perform best in an
environment that does not require extensive social
interaction. The claimant is capable of occasional, brief,
superficial interaction involving the public, coworkers, and
supervisors. Due to moderate restrictions in the ability to
react to changes in the work setting, the claimant can avoid
hazards in the work setting but there should be no abrupt
changes, only gradually introduced changes. Tr. 18.
6. “The claimant does not have past relevant
work.” Tr. 25. The ALJ noted: “Although not
performed at substantial gainful activity levels, the
vocational expert testified the claimant has past work as a
bagger and cleaner.” Id.
7. The claimant was 22 years old, which is defined as a
younger individual age 18-49, on the date first insured.
Id. He has a limited education and is able to
communicate in English. Transferability of job skills is not
an issue because the claimant does not have past relevant
work. Id. (Plaintiff was 28 years old at the time of
the ALJ's decision. Tr. 26, 168.)
8. “Considering the claimant's age, education, work
experience, and [RFC], there are jobs that exist in
significant numbers in the national economy that the claimant
can perform.” Tr. 25. The ALJ noted that
Plaintiff's ability to perform work at all exertional
levels has been compromised by nonexertional limitations. To
determine the extent to which these limitations erode the
occupational base of unskilled work at all exertional levels,
the ALJ asked the vocational expert whether jobs exist in the
national economy for an individual with the claimant's
age, education, work experience, and RFC. The vocational
expert identified several representative occupations such as
Dishwasher, medium exertional level, SVP of 2, and unskilled;
Garbage Collector, heavy exertional level, SVP of 1, and
unskilled; and Bottle Packer, light exertional level, SVP of
2, and unskilled. Tr. 26, 64-66. Plaintiff argues that the
ALJ erred at step 5 by finding that he is capable of
performing work in the national economy. ECF No. 25 at 24-29.
9. “The claimant has not been under a disability, as
defined in the Social Security Act, from January 1, 2010,
through the date of this decision.” Id.;
see supra at n.2.
Legal Standards Guiding Judicial Review
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.”
Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002) (citations omitted).
making an initial determination of disability, the examiner
must consider four factors: ‘(1) objective medical
facts or clinical findings; (2) diagnosis of examining
physicians; (3) subjective evidence of pain and disability as
testified to by the claimant and corroborated by [other
observers, including family members], and (4) the
claimant's age, education, and work history.'”
Bloodsworth, 703 F.2d at 1240 (citations omitted). 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 DIB if he
or she is under a disability prior to the expiration of his
or her insured status. See 42 U.S.C. §
423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211;
Torres v. Sec'y of Health & Human Servs.,
845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v.
Sec'y of Health & Human Servs., 818 F.2d 96, 97
(1st Cir. 1986).
to 20 C.F.R. § 404.1520(a)(4)(i)-(v), the Commissioner
analyzes a claim in five steps:
1. Is the individual currently engaged in substantial gainful
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. Part 404,
4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent ...