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Flowers v. Berryhill

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

February 6, 2018

JIMMY L. FLOWERS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 Act and an application for a period of disability and Disability Income Benefits (DIB) filed pursuant to Title II 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 June 12, 2013, Plaintiff, Jimmy L. Flowers, filed applications for DIB and SSI, alleging disability beginning January 1, 2013, based on diabetes, high blood pressure, chronic kidney disease, and leg neuropathy. Tr. 13, 195-210, 262.[1] Plaintiff last met the insured status requirements for DIB on September 30, 2018. Tr. 13.

         Plaintiff's applications were denied initially on August 2, 2013, and upon reconsideration on November 22, 2013. Tr. 13, 84-144. On December 18, 2013, Plaintiff requested a hearing. Tr. 13, 150-51. The video hearing was held on June 24, 2015, before Administrative Law Judge (ALJ) Bernard Porter, and Plaintiff appeared in Gainesville, Florida, and the ALJ presided over the hearing from Jacksonville, Florida.[2] Tr. 22, 50-83. Plaintiff was represented by N. Albert Bacharach, Jr., an attorney, but Pamela C. Dunmore, an attorney and appointed co-representative from the same firm, appeared at the hearing. Tr. 13, 50, 147-49. Plaintiff testified during the hearing. Tr. 13, 54-77, 81-82. A. Mark Capps, an impartial vocational expert, testified during the hearing. Tr. 13, 77-80, 312-13 evidence. Tr. 53; see Tr. 22-26. It appears that after the hearing, Exhibit 12F was filed consisting of treatment notes covering July 30, 2013, to January 6, 2015, from the Division of Nephrology at Shands Medical Plaza. Tr. 26, 720-53; see Tr. 81. These records were considered by the ALJ. Tr. 18. On August 6, 2015, the ALJ issued a decision and denied Plaintiff's applications for benefits, concluding that Plaintiff was not disabled from June 2, 2013, through the date of the decision. Tr. 13-21.

         On October 5, 2015, Plaintiff's counsel filed a two-page brief, which appears as Exhibit 16E. Tr. 5, 314-15. On October 6, 2015, Plaintiff requested review of the ALJ's decision. Tr. 7-9. On February 7, 2017, the Appeals Council noted that it had considered the two-page brief and denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6; see 20 C.F.R. § 404.981.

         On April 10, 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. 23 and 26, 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 September 30, 2018.” Tr. 15.
2. “The claimant has not engaged in substantial gainful activity since June 2, 2013, the amended alleged disability onset date.” Id.
3. “The claimant has the following severe impairments: hypertension; diabetes mellitus with neuropathy; chronic kidney disease; GERD, HIV disease; anemia; and obesity.” 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.” Tr. 16.
5. “[T]he claimant has the [RFC] to perform a reduced range of sedentary work and can lift and carry 10 pounds occasionally and 5 pounds frequently, sit for up to six hours, stand for up to two hours, and walk for up to two hours in an eight-hour workday. The claimant can push and pull as much as he can lift and carry. The claimant requires a sit/stand option that allows him to change positions between sitting and standing at least every 30 minutes. This is a brief positional change lasting no more than three minutes at a time where the claimant remains in the workstation during the positional change. The claimant is limited to occasional use of foot controls and occasional climbing of ramps and stairs though can never climb ladders or scaffolds. He can frequently balance, stoop, and crouch. He can kneel occasionally but can never crawl. The claimant cannot work around unprotected heights or around moving mechanical parts. He cannot work in environments where there are temperature extremes. Time off task would be accommodated by normal breaks.” Tr. 16.
6. “The claimant is unable to perform any past relevant work.” Tr. 19. The ALJ noted that the vocational expert testified that Plaintiff's past relevant work is classified in the Dictionary of Occupational Titles (DOT) as apartment maintenance worker, medium exertion, semi-skilled with an SVP rating of 3. Id.
7. The claimant was 43 years old, which is defined as a younger individual age 18-44, on the amended alleged disability onset date and subsequently changed age category to a younger individual age 45-49.[3] Tr. 19-20.
8. “The claimant has a limited education and is able to communicate in English.” Tr. 20. “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, ' whether or not the claimant has transferable job skills.” Tr. 20.
9. The ALJ determined that “[i]f the claimant had the [RFC] to perform the full range of sedentary work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 201.25 and Rule 201.19.” Tr. 20. The ALJ determined, however, that Plaintiff's “ability to perform all or substantially all the requirements of this level work has been impeded by additional limitations, ” and, as a result, he “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 testified that such an individual could perform the representative occupations such as food and beverage order clerk, table worker, and surveillance system monitor, all sedentary exertion, unskilled, with an SVP of 2.[4] Id.; Tr. 79-80.
10. The claimant has not been under a disability, as defined in the Social Security Act, from June 2, 2013 through the date of the date of [the ALJ's] decision.” Tr. 21.

         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. §§ 404.1505(a), 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 is under a disability prior to the expiration of his 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).

         The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(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. § 404.1520(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 he is disabled, and consequently, is responsible for producing evidence in support of his claim. See 20 ...

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