United States District Court, N.D. Florida, Gainesville Division
EDITH G. HALE, 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 application for Supplemental Security Income
(SSI) filed pursuant to Title XVI of the Social Security Act.
After consideration of the entire record, it is recommended
that the decision of the Commissioner be affirmed.
November 10, 2014, Plaintiff, Edith G. Hale, filed an
application for SSI, alleging disability beginning December
1, 2000, based on bipolar, schizophrenia, mental disorders,
diabetes, high blood pressure, depression, high cholesterol,
and back problems. Tr. 25, 100-02, 107-11, 224.
application was denied initially on February 3, 2015, and
upon reconsideration on April 17, 2015. Tr. 25, 130-36,
140-45. On May 15, 2015, Plaintiff requested a hearing. Tr.
25. On May 3, 2016, Plaintiff's representative filed a
pre-hearing brief stating, in part, that Plaintiff indicated
she was approved for SSI benefits in 2000, but the benefits
were stopped in 2014 because of her
incarceration. Tr. 292-94; see infra at 12
(hearing testimony) and Tr. 32. The video hearing was held on
May 6, 2016, before Administrative Law Judge (ALJ) William H.
Greer, appearing in Jacksonville, Florida, and Plaintiff
appearing in Gainesville, Florida. Tr. 25, 42-71. Plaintiff was
primarily represented by Bradford D. Myler, an attorney;
however, Bradley Howes, also an attorney and authorized
representative, appeared at the hearing. Tr. 25, 42, 44,
171-72. Plaintiff testified during the hearing. Tr. 45-67. C.
Kimball Heartsill, an impartial vocational expert (VE),
testified during the hearing. Tr. 25, 67-70, 276-79 (Resume).
Exhibits 1A through18F were received into evidence. Tr. 44.
28, 2016, the ALJ issued a decision and denied
Plaintiff's application for benefits concluding that
Plaintiff was not disabled since November 10, 2014, the
amended alleged onset date and the date the application was
filed. Tr. 36.
8, 2016, Plaintiff's counsel withdrew from representing
Plaintiff. Tr. 20-21. On August 20, 2016, Plaintiff's new
counsel submitted a request for review of the ALJ's
decision, Tr. 15-19, and the Appeals Council granted
Plaintiff additional time to submit additional evidence or a
statement about the facts and the law in this case. Tr. 8. On
January 30, 2017, counsel submitted a one-page letter. Tr. 7.
On April 4, 2017, the Appeals Council denied the request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-3; see 20 C.F.R. §
2, 2017, Plaintiff, by counsel, filed a Complaint with this
Court seeking review of the ALJ's decision. ECF No. 1.
The parties filed memoranda of law, ECF Nos. 14 and 17, which
have been considered.
Findings of the ALJ
made several findings:
“The claimant has not engaged in substantial gainful
activity since November 10, 2014, the application
date.” Tr. 27.
“The claimant has the following severe impairments:
disorders of the cervical and lumbar spine, obesity, diabetes
mellitus, affective disorders, anxiety-related disorder, and
history of polysubstance use disorder.” Id.
The ALJ considered several of Plaintiff's medical issues
for which she sought treatment including gastroesophageal
reflux disease (GERD), hypertension, hyperlipidemia, and a
recent history of left forearm fracture. The ALJ determined
“the evidence does not show that these impairments have
imposed vocationally restrictive limitations for a period of
12 continuous months” and that “these impairments
only had a minimal effect on the claimant's ability to
perform work-related activities and are therefore not
“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. 27. The ALJ considered the
effect of Plaintiff's diabetes and obesity “when
assessing the claims under the other steps of the sequential
evaluation process, including the assessment of her residual
functional capacity [RFC].” Tr. 28. The ALJ also
considered the severity of Plaintiff's mental impairments
and whether they met or medically equaled the criteria of
listings 12.04, 12.06, 12.09. The ALJ considered whether the
“paragraph B” criteria were satisfied and
determined that Plaintiff has mild limitation in
activities of daily living; moderate limitation in
social functioning; mild to moderate limitation in
maintaining concentration, persistence, or pace; and no
evidence that Plaintiff has experienced episodes of
decompensation of extended duration. Tr. 28-29.
“[T]he claimant has the [RFC] to perform light work as
defined in 20 CFR 416.967(b) except with no climbing of
ladders, ropes, or scaffolds; limited to simple, unskilled,
and repetitive tasks; and contact with the general public and
coworkers is limited to occasional and must be brief and
superficial.” Tr. 29-30.
“The claimant has no past relevant work.” Tr. 35;
68. (The ALJ made this determination during the hearing.) The
claimant “was 45 years old, which is defined as a
younger individual age 18-49, on the date the application was
filed.” Tr. 35. “The claimant has a
limited education and is able to communicate in
English.” Id. “Transferability of job
skills is not an issue because the claimant does not have
past relevant work.” Id.
“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.” Id. To determine the extent to
which Plaintiff can perform all or substantially all the
requirements of a full range of light work given additional
limitations and the extent to which these limitations erode
the unskilled light occupational base, 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. Id. The vocational expert
testified that such an individual could perform several
representative occupations such as bone picker and
machine egg washer, light exertion, unskilled, with
an SVP of 1, and blade balancer, light exertion,
unskilled, with an SVP of 2. Tr. 36; Tr. 68-69. The vocational
expert also testified that the hypothetical person could
perform two representative jobs that are unskilled and
sedentary with occasional contact with the public and
coworkers such as table worker and waxer each with an SVP of
2. Tr. 69. The vocational expert further testified that if
such a person were off task from work for 15% or more of the
workday or absent from work two days or more a month, this
would exceed what is allowable. Id.
“The claimant has not been under a disability, as
defined in the Social Security Act, since November 10, 2014,
the amended alleged onset date and date the application was
filed.” Tr. 36.
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. §§ 416.905(a),
416.909 (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).
Commissioner analyzes a claim in five steps. 20 C.F.R. §
the individual currently engaged in substantial gainful
the individual have any severe impairments?
the individual have any severe impairments that meet or equal
those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
the individual's impairments prevent other work?
positive finding at step one or a negative finding at step
two results in disapproval of the application for benefits. A
positive finding at step three results in approval of the
application for benefits. At step four, the claimant bears
the burden of establishing a severe impairment that precludes
the performance of past relevant work. Consideration is given
to the assessment of the claimant's RFC and the
claimant's past relevant work. If the claimant can still
do past relevant work, there will be a finding that the
claimant is not disabled. If the claimant carries this
burden, however, the burden shifts to the Commissioner at
step five to establish that despite the claimant's
impairments, the claimant is able to perform other work in
the national economy in light of the claimant's RFC, age,
education, and work experience. Phillips, 357 F.3d
at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th
Cir. 1999); Chester, 792 F.2d at 131; MacGregor
v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20
C.F.R. § 416.920(a)(4)(v), (e) & (g). An ALJ may
make this determination either by applying the grids or by
obtaining the testimony of a vocational expert.
Phillips, 357 F.3d at 1239-40; see 20
C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
carries this burden, the claimant must prove that he or she
cannot perform the work suggested by the Commissioner.
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
bears the burden of proving that she is disabled, and
consequently, is responsible for producing evidence in
support of her claim. See 20 C.F.R. §
416.912(a)(1); Moore, 405 F.3d at 1211.
evidence supports the ALJ's evaluation of the medical
evidence, Plaintiff's RFC, her credibility, and the
vocational expert's testimony regarding whether Plaintiff
is able to perform work in the national economy.
Plaintiff argues that substantial evidence does not support
the ALJ's determination of Plaintiff's RFC. ECF No.
14 at 9, 19-25. Specifically, Plaintiff claims that the ALJ
should have found her disabled at step 5 of the sequential
because it is entirely credible that as a direct and
proximate result of her combination of impairments . . . she
cannot be present and function in the workplace eight (8)
hours a day five (5) days a week, for an entire month,
without being absent from work 2 or more days per month. And,
even assuming she can be present each scheduled workday for 8
hours a day 5 days a week, plaintiff Hale would require too
much additional nonproductive time, over the course of the
workday in the work week, to meet the productivity
expectations of his [sic] employer. Compounding the
diagnostic picture, plaintiff Hale takes in addition to
diabetes medications and pain medication three different
antidepressants and a [sic] antipsychotic, with the expected
and accompanying site effects.
ECF No. 14 at 20. Plaintiff argues the ALJ erred because he
did not secure a consultative mental health examination and
evaluation. Id. Plaintiff also argues that the ALJ
should “have explained his thought process as to how
plaintiff Hale, who only lost her entitlement to continuing
receipt of their [sic] SSI benefits based on her mental
health impairments, because she went to prison, suddenly,
post[-]incarceration, will be able to maintain full-time work
at the light exertional level.” ECF No. 14 at 20-21.
provides a Statement of the Facts that includes references to
the Plaintiff's hearing testimony, Tr. 46-47; a February
21, 2014, intake psychological screening while she was
incarcerated, Tr. 353-54; January 30, 2015, and April 18,
2016, patient records from Meridian, Tr. 396, 647; and the
results of a February 2, 2015, consultative examination by
Robert A. Greenberg, M.D., Tr. 440, 442. ECF No. 14 at 6-9.
Plaintiff concludes the Statement of the Facts by noting that
there was no mental health consultative examination
evaluation after Dr. ...