United States District Court, N.D. Florida, Gainesville Division
JIMMY L. FLOWERS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 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
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,
Plaintiff last met the insured status requirements for DIB on
September 30, 2018. Tr. 13.
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. 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.
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.
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.
Findings of the ALJ
made several findings:
1. “The claimant meets the insured status requirements
of the Social Security Act through September 30, 2018.”
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
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. 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
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.
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. §§
404.1505(a), 404.1509 (duration requirement).
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).
Commissioner analyzes a claim in five steps. 20 C.F.R. §
1. Is the individual currently engaged in substantial gainful
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,
4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
5. Do 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. § 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).
bears the burden of proving that he is disabled, and
consequently, is responsible for producing evidence in
support of his claim. See 20 ...