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Hale v. Berryhill

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

January 31, 2018

EDITH G. HALE, 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 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.

         I. Procedural History

         On 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.[1]

         Plaintiff's 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.[2] 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.[3] 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.

         On June 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.

         On July 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. § 404.981.

         On June 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.

         II. Findings of the ALJ

         The ALJ made several findings:

         1. “The claimant has not engaged in substantial gainful activity since November 10, 2014, the application date.” Tr. 27.

         2. “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 severe.” Id.

         3. “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;[4] 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.

         4. “[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.

         5. “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.

         6. “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.[5] 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.

         7. “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.

         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).[6]

         “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. §§ 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).

         The Commissioner analyzes a claim in five steps. 20 C.F.R. § 416.920(a)(4)(i)-(v).

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

         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 past relevant work?[7]

         5. Do the individual's impairments prevent other work?

         A 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).

         Plaintiff 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.

         IV. Legal Analysis

         Substantial 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.


         Generally, 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 evaluation process

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.


         Plaintiff 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. ...

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