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Rodriguez v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

February 27, 2018

ROBIN STAR RODRIGUEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL C. IR1CK UNITED STATES MAGISTRATE JUDGE.

         Robin Star Rodriguez (Claimant) appeals to the District Court from a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits and supplemental security income. Doc. 1; R. 1-8, 266-78. Claimant argued that the Administrative Law Judge (the ALJ) erred by: 1) “failing to properly evaluate [Claimant's] need for an assistive device”; 2) “incorrectly evaluating [Claimant's] credibility and giving inadequate weight to her testimony”; 3) “failing to include limitations from [Claimant's] upper extremity impairments in her residual functional capacity to reach, handle, finger, and feel”; 4) “finding that [Claimant] can perform her past work because the limitations supported by substantial evidence preclude her from performing her past work and direct that she be found disabled under the Medical Vocational Guidelines”; and 5) “failing to properly evaluate [Claimant's] impairments in light of the date last insured.” Doc. 17 at 12-35. For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

         I. THE ALJ'S DECISION

         In 2013, Claimant filed applications for disability insurance benefits and supplemental security income. R. 15, 266-78. Claimant alleged a disability onset date of June 1, 2012. Id.

         The ALJ issued his decision on October 30, 2015. R. 14-28. In the decision, the ALJ found that Claimant had the following severe impairments: cervical disc disease, obesity, gastroesophageal reflux disorder, lumbar disc disease, hypothyroidism, depressive disorder, anxiety disorder, vertigo, hypertension, peptic ulcer disease, neuropathy, migraine headaches, decreased vision, and deep vein thrombosis. R. 17. The ALJ found that Claimant had a residual functional capacity (RFC) to perform less than a full range of sedentary work as defined by 20 C.F.R. §§ 404.1567(a) and 416.967(a).[1] R. 19. Specifically, the ALJ found as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with the following limitations: The claimant can lift and carry 10 lbs. occasionally and 5 lbs. frequently. She is able to sit for up to six hours, and stand and walk for up to two hours each. She is able to push and pull as much as she can lift and carry. She is limited to the occasional use of foot controls, and occasional overhead reaching. She is limited to occasional climbing of ramps and stairs. She is never to climb ladders or scaffolds. The claimant is limited to frequent balancing, stooping, and crouching. She is limited to occasional kneeling, and no crawling. She is unable to read very small print, but is able to read ordinary newspaper or book style print. She should not work around unprotected heights or moving mechanical parts. She should have no concentrated exposure to humidity, wetness, dust, fumes and gases. She should avoid environments with temperature extremes. She is permitted to be off task up to 5% of the workday. The claimant is allowed a sit or stand option with the ability to change his position at every thirty minutes, with a brief positional change lasting nor more than three minutes at a time, where the claimant remains at the workstation during the positional change.

Id. The ALJ posed a hypothetical question to the vocational expert (VE) that was consistent with the foregoing RFC determination, and the VE testified that Claimant was capable of performing her past relevant work as a telephone solicitor. R. 80-82. The ALJ thus found that Claimant was capable of performing her past relevant work as a telephone solicitor. R. 27. Therefore, the ALJ found that Claimant was not disabled. R. 27-28.

         II. STANDARD OF REVIEW

         “In Social Security appeals, [the court] must determine whether the Commissioner's decision is ‘supported by substantial evidence and based on proper legal standards.'” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

         III. ANALYSIS

         A. Failure to Evaluate Claimant's Need for an Assistive Device

         Claimant argued that the ALJ committed reversible error by failing to properly evaluate Claimant's need for an assistive device. Doc. 17 at 12-14. Specifically, Claimant argued that her need to use a cane limits her RFC to a greater extent than found by the ALJ, and, thus, that the ALJ erred by failing to include Claimant's need to use a cane in Claimant's RFC. Id. Claimant further argued that her need to use a cane would preclude her from performing her past relevant work. Id. The Commissioner argued that the ALJ's decision not to include Claimant's alleged need to use a cane was supported by substantial evidence. Id. at 14-17.

         In his decision, the Commissioner stated as follows with regard to Claimant's alleged need to use a cane:

The Claimant testified that she was prescribed a cane, however, the cane was not prescribed until a year after her alleged onset date. Even when the cane was prescribed the treatment note indicates that the claimant sought the prescription of the cane (Exhibit 3F page 5). Even with a cane, the claimant would not prevented from sedentary employment.

R. 26. Claimant argued that all three of the reasons provided by the ALJ are “erroneous or fail[] to overcome the impact of [Claimant's] need for a cane on her residual functional capacity.” Doc. 17 at 12-13. Although the Court has concerns about the first two reasons provided by the ALJ - that Claimant requested a prescription for the cane and that the cane was not prescribed until one year after Claimant's alleged onset date - the Court need not reach those issues here, as the third reason provided by the ALJ is supported by substantial evidence and any error would be harmless.[2]

         Claimant argued that the third reason provided by the ALJ was erroneous because Social Security Ruling (SSR) 96-9p provides that “the occupational base for an individual who must use [an assistive] device for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment) may be significantly eroded.” Id. at 13 (italics added). Claimant further noted that SSR 96-9p provides that “[i]n these situations, too, it may be especially useful to consult a vocational resource in order to make a judgment regarding the individual's ability to make an adjustment to work.” Id. (italics added). But Claimant provided the foregoing quotes out of context. SSR 96-9p provides, in part, as follows:

Medically required hand-held assistive device: To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of a case. For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.
Since most unskilled sedentary work requires only occasional lifting and carrying of light objects such as ledgers and files and a maximum lifting capacity for only 10 pounds, an individual who uses a medically required hand-held assistive device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary unskilled occupations with the other hand. For example, an individual who must use a hand-held assistive device to aid in walking or standing because of an impairment that affects one lower extremity (e.g., an unstable knee), or to reduce pain when walking, who is limited to sedentary work because of the impairment affecting the lower extremity, and who has no other functional limitations or restrictions may still have the ability to make an adjustment to sedentary work that exists in significant numbers. On the other ...

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