United States District Court, N.D. Florida, Tallahassee Division
SHARON J. ROSS, 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
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. Plaintiff last met the
insured status requirements for DIB on December 31,
2012. Tr. 15, 87, 106.
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.
had previously filed SSI and DIB applications as noted by the
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.
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.
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. 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. §
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.
Findings of the ALJ
made several findings:
“The claimant meets the insured status requirements of
the Social Security Act through December 31, 2012.” Tr.
“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
Tr. 16-17; see Tr. 21 (ALJ's concluding RFC
“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.
“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
“[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.”
“The claimant is unable to perform any past relevant
work.” Tr. 21.
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].” Tr. 19-20.
“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.”
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).Tr. 64-65; see Tr. 22; see
also infra at 29-31.
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 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).
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. 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).
bears the burden of proving that she is disabled, and
consequently, is responsible for producing evidence in
support of her claim. See 20 ...