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Wagner v. Berryhill

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

November 30, 2017

JEREMY B. WAGNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         This is 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.

         I. Procedural History

         On 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, 222.[1], [2]

         Plaintiff's 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.

         On July 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.

         On 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.

         On 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.

         On 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.

         II. Findings of the ALJ

         The ALJ made several findings:

1. “The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.” Tr. 14.
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.[3] Tr. 16.

         The ALJ 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 1-F/72).
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 retardation.

Tr. 17-18.

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.[4] 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.

         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.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).[5]

         “In 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).[6] 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).

         Pursuant 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 activity [SGA]?
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, Subpart P?
4. Does the individual have the RFC to perform work despite limitations and are there any impairments which prevent ...

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