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Crisci v. Berryhill

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

December 19, 2017

KELLY LYNN CRISCI, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         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

         On June 26, 2013, Plaintiff Kelly Lynn Crisci filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. Tr. 202-10, 218.[1] Plaintiff alleged disability beginning June 1, 2012, due to back pain, chronic obstructive pulmonary disease (COPD), anxiety, and depression. Tr. 84, 108, 120, 218-19. The claims were initially denied on November 12, 2013, and again on reconsideration January 21, 2014. Tr. 104-05, 108-19. Plaintiff requested a hearing, which was held on January 19, 2016, in Jacksonville, Florida, before Administrative Law Judge (ALJ) Teresa J. McGarry. Tr. 43-78. Plaintiff was represented by attorney Amy Kimble. Plaintiff appeared in person and testified, as did impartial vocational expert Melissa Tanner.

         The ALJ issued a decision on February 10, 2016, finding that Plaintiff has not been under a disability as defined in the Social Security Act. Tr. 23-36. The ALJ made the following pertinent findings:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2017. Tr. 25.
2. The claimant has not engaged in substantial gainful activity since June 1, 2012, the alleged onset date. Tr. 25.
3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine; chronic obstructive pulmonary disease (COPD); and anxiety/depression. Tr. 25. The ALJ found that Plaintiff's asymptomatic hypertension was a non-severe impairment because it was effectively treated with medication and had no more than a minimal effect on the Plaintiff's functional abilities. Tr. 25-26
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. Tr. 26. The ALJ found that based on Plaintiff's recorded FEV1 and FEV values, coupled with her height, her COPD fails to meet or medically equal the listing level impairments of section 3.02 of Appendix 1. Tr. 26.
5. After careful consideration of the entire record, the Claimant has the residual functional capacity to perform light work involving lifting/carrying 10 pounds frequently and 20 pounds occasionally; sitting, standing, and walking each for up to 8 hours in the workday; never climbing ropes, ladders, or scaffolds; and limited to occasional climbing of ramps/stairs, and occasional balancing, bending, stooping, squatting, crouching, crawling, and kneeling. Claimant can use her upper extremities in all ways. She can see, hear, and talk. She must avoid heights, extreme temperatures, humidity, dust, odors, chemicals, and fumes. She should not work directly with the public in a customer service or public relations way. The claimant can be in the vicinity of co-workers, but not work in tandem with them. Tr. 28.
6. The claimant is unable to perform any past relevant work as a retail store manager or cashier checker. Tr. 34.
7. The claimant was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age. Tr. 34.
8. The claimant has a limited education and is able to communicate in English. Tr. 34.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” the claimant has transferable job skills. Tr. 34.
10. 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. Tr. 34. The ALJ found that Plaintiff can perform the job of marker, DOT #209.587-034, light, unskilled, SVP of 2, with 319, 657 jobs in the national economy; sub assembler, DOT #729.684-054, light, unskilled, SVP of 2, with 9, 312 jobs in the national economy; and mail clerk, DOT #209.687-026, light, unskilled, SVP of 2, with 2, 489 jobs in the national economy.[2] Tr. 36.
11. The claimant has not been under a disability as defined in the Social Security Act from June 1, 2012, through the date of the decision, February 10, 2016.

         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. 36. The ALJ also found that Plaintiff is not disabled under section 1614(a)(3)(A)[3] of the Social Security act and is thus not entitled to supplemental security income. Id. Plaintiff requested review by the Appeals Council, which was denied on March 8, 2017. Tr. 1-4. Thus, the decision of the ALJ became the final decision of the Commissioner and is ripe for review. Accordingly, Plaintiff, represented by counsel, filed a Complaint for judicial review pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g). ECF No. 1.

         II. 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.”[4] 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 (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), [5] the Commissioner ...


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