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Ross v. Berryhill

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

February 26, 2018

SHARON J. ROSS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         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 November 29 and 30, 2012, Plaintiff, Sharon J. Ross, filed applications for SSI and a period of disability and DIB, respectively, alleging disability beginning August 20, 2007, based on bulging discs, chronic back pain, shoulder pain, severe pain in back, numbness in right leg, bulging disc, diabetes, migraines, and high blood pressure. Tr. 14, 69-70, 83, 95-96, 99, 113, 200-08, 241.[1] Plaintiff last met the insured status requirements for DIB on December 31, 2012.[2] Tr. 15, 87, 106.

         Plaintiff's applications were denied initially on July 10, 2013, and upon reconsideration on November 19, 2013. Tr. 14, 133-43, 146-57. On December 27, 2013, Plaintiff requested a hearing. Tr. 14, 156-57. The hearing was held on August 28, 2015, before Administrative Law Judge (ALJ) Lisa Raleigh in Tallahassee, Florida. Tr. 14, 29-68. Plaintiff was represented by Carletta E. Griffin, EDPNA, a non-attorney representative, who appeared by teleconference. Tr. 14, 50, 147-49, 160-63, 330. Plaintiff testified during the hearing in Tallahassee, Florida, with the ALJ. Tr. 14, 31, 34-60. Robert L. Lessne, Ph.D., an impartial vocational expert, testified during the hearing. Tr. 14, 60-66, 311-20 (Resume). Exhibits 1A through 15F were admitted into evidence during the hearing. Tr. 24-28, 32.

         Plaintiff had previously filed SSI and DIB applications as noted by the ALJ.

On August 30, 1988, and March 5, 2012, the claimant filed prior Title II and Title XVI applications alleging disability beginning May 15, 1988, and December 2, 2008, respectively, which were denied initially on November 2, 1988, and April 23, 2012, respectively, and not appealed. These applications were denied. I deny her implied request for reopening of the 2012 applications because I find no reason to reopen the prior determinations. I have jurisdiction over the issue, but the facts and evidence of the particular case do not warrant reopening. Finally, reopening would not alter any prior determinations (HALLEX I-2-9-10B1). Administrative finality applies through April 23, 2012, the date of the most recent prior determinations (20 CFR 404.955 and 416.1455).

Tr. 14; see Tr. 236-37; see also Califano v. Sanders, 430 U.S. 99, 107-09 (1977). This determination is not the subject of review in this case.

         On September 18, 2015, the ALJ issued a decision and denied Plaintiff's applications for benefits, concluding that Plaintiff was not disabled from August 20, 2007, through the date of the decision. Tr. 14-22.

         On November 11, 2015, Plaintiff's representative requested review of the ALJ's decision. Tr. 7-10. On November 12, 2015, Plaintiff's representative filed a three-page brief, which appears as Exhibit 22E.[3] Tr. 8-10, 328-30 (same). On December 16, 2016, the Appeals Council noted that it had considered the brief (Exhibit 22E) filed by Plaintiff's representative and Plaintiff's statement that she believed “the Administrative Law Judge's bias prejudiced [her] case, ” and stated:

The Appeals Council has considered your allegations under the abuse of discretion standard in 20 CFR 404.970 and 416.1470. After reviewing the entire record, including the hearing recording, the Council has determined that there was no abuse of discretion and that no other basis exists to grant review in this case[.] The Council has completed its action on your request for review.

Tr. 2, 7. The Appeals Council 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 February 16, 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. 24 and 25, 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 December 31, 2012.” Tr. 16.

         2. “The claimant has not engaged in substantial gainful activity since August 20, 2007, the alleged onset date.” Id. The ALJ states:

The claimant worked after the alleged disability onset date. She testified that she did clerical work at her church about 20 hours per week in exchange for payment of her light and phone bills, and she did this for a few months [Tr. 46-50]. Although she said she did not work after that [Tr. 50], she told Dr. Gibson that she was working as a CNA and was trying to find fulltime employment with an agency. She had had some private clients but lost them to illness (12F6) [Tr. 430]. At the hearing, she denied having told Dr. Gibson this and said something confusing and cryptic about her vocational rehabilitation records not being updated or not having transferred over [Tr. 44; see Tr. 61 (“I was not a CNA.”)]. Her earnings records do not reflect the income she said she earned in 2012 (5D-6D) [Tr. 216, 219]. Therefore, this work was not SGA, but it may show that she can do more work than she actually did (20 CFR 404.1571 and 416.971).

Tr. 16-17; see Tr. 21 (ALJ's concluding RFC remarks).

         3. “The claimant has the following severe impairments: lumbar disc disease; bilateral knee degenerative joint disease; bilateral shoulder degenerative joint disease, status post right shoulder arthroscopic decompression; and obesity.” Tr. 17. The ALJ also considered Plaintiff's report of hypertension, status post bariatric surgery and bariatric surgery redo, and diabetes mellitus and considered them non-severe noting, in part, “[s]he experienced no hypertensive or diabetic complications (3F; 9F; 12F).” 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. 17. The ALJ noted that Plaintiff did not meet Listing 1.02A or B “because she does not experience ineffective ambulation as [L]isting 1.00B2b defines and because she does not have involvement of 1 major peripheral joint on each upper extremity resulted in loss of ability to perform fine and gross movements effectively as [L]isting 1.00B2c defines (emphasis added). She does not meet [L]isting 1.04 because there is no evidence of nerve compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudo[-]claudication.” Id.

         5. “[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can occasionally reach overhead with her left arm and frequently reach, handle, and finger bilaterally. She can never climb ladders or scaffolds and can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. She may occasionally be exposed to extreme cold and vibration and frequently be exposed to unprotected heights, moving mechanical parts, and operate a motor vehicle.” Id.

         6. “The claimant is unable to perform any past relevant work.” Tr. 21.

         7. The claimant was 43 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 [age 50 to 54].”[4] Tr. 19-20.

         8. “The claimant has a high school education and is able to communicate in English.” Tr. 21. “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.” Id.

         9. At step 5 of the sequential evaluation process, the ALJ determined whether a successful adjustment to other work can be made by Plaintiff and, in so doing, considered Plaintiff's RFC, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. Tr. 21. The ALJ determined that Plaintiff had non-exertional limitations and that her ability to perform all or substantially all the requirements of a full range of light work has been impeded by additional limitations. As a result, the ALJ inquired of the vocational expert whether these limitations eroded the unskilled light occupational base. The ALJ asked the vocational expert a hypothetical question that included the facts ultimately found by the ALJ in the RFC determination with the modification making reaching overhead with the left arm occasional rather than frequent. Tr. 63-64. The vocational expert testified that such an individual could perform the representative occupations such as sandwich board carrier, light exertion with an SVP of 1 (unskilled); gate guard, light exertion with an SVP of 3 (semi-skilled); counter clerk, light exertion with an SVP of 2 (unskilled); and usher, light exertion with an SVP of 2 (unskilled).[5]Tr. 64-65; see Tr. 22; see also infra at 29-31.

         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).[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. §§ 404.1505(a), 404.1509 (duration requirement).[7]

         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 she is under a disability prior to the expiration of her 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?[8]
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. pt. 404, subpt. P, app. 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 ...


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