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Lewis v. Berryhill

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

March 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.



         Plaintiff appeals to this Court from a final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security Act. (ECF No. 1.) The Commissioner has answered (ECF No. 9), and both parties have filed briefs outlining their respective positions. (ECF Nos. 20, 22.) For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.


         Plaintiff filed her application for SSI on December 14, 2012, alleging disability beginning December 5, 2012, due to a back injury, asthma, and depression. (R. 292-97, 325.) At the time of her application, Plaintiff reported that her weight was 260 pounds. Id. at 325. Her application was denied initially and upon reconsideration. (R. 134-39, 145-49.) Following a hearing on September 4, 2015, an administrative law judge (“ALJ”) issued a decision unfavorable to Plaintiff. (R. 15-34.) The Appeals Council denied Plaintiff's request for review. (R. 1-4.)

         Plaintiff then filed the instant appeal. (ECF No. 1.) Plaintiff argues that she should have been found disabled because the ALJ's residual functional capacity (“RFC”) finding is not supported by the record, in light of her morbid obesity, back pain, and radiculopathy which precludes her from standing for six hours out of an eight-hour workday. Plaintiff also argues that the ALJ erred in assessing Plaintiff's credibility. (ECF No. 20.)


         The Commissioner's findings of fact are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g) (2012). 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), Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

         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, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district 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; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court must also consider evidence detracting from evidence on which the Commissioner relied). However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1) (2012); 20 C.F.R. § 404.1505 (2015).[1] The impairment must be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity which exists in the national economy. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. § 404.1520. The claimant has the burden of proving the existence of a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). First, if a claimant is working at a substantial gainful activity, she is not disabled. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. § 404.1520(d). Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. §§ 404.1520(e)-(f). Fifth, if a claimant's impairments (considering her RFC, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled. § 404.1520(g).

         The burden of proof regarding the plaintiff's inability to perform past relevant work initially lies with the plaintiff. Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The burden then temporarily shifts to the Commissioner to demonstrate that “other work” which the claimant can perform currently exists in the national economy. Doughty, 245 F.3d at 1278 n.2.[2]


         A. ALJ's Decision

         The ALJ determined that Plaintiff has the severe impairments of sciatica, inflammatory arthritis, right cubital tunnel syndrome, obesity, mood disorder, and panic disorder. R. 20. Plaintiff does not have an impairment or combination of impairments that meets or equals the listings. The ALJ determined that Plaintiff has the RFC for light work, with additional postural and mental limitations. The ALJ concluded that Plaintiff's subjective complaints regarding the limiting effects of her impairments were not entirely credible, in view of the objective medical evidence which reflected very conservative treatment, and in view of the evidence reflecting her ability to perform ADL's such as caring for her personal needs, driving, shopping for necessities, preparing simple meals, handling finances, and following written and spoken instructions. R. 23-24. To support this finding, the ALJ extensively discussed the relevant medical evidence, including the assessment of an examining consulting physician, Dr. Humphreys, and the opinions of non-examining consultants, who concluded that Plaintiff could perform work at the medium exertional level. In finding that Plaintiff had the RFC for a reduced range of light work, the ALJ explained that he did so out of an abundance of caution and viewing Plaintiff's subjective complaints in a light most favorable to her. R. 27.

         Plaintiff had no past relevant work. Based upon the testimony of a VE, the ALJ determined that in view of Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as office helper, marker, and mail clerk. The ALJ therefore found that Plaintiff was not disabled. R. 28-29.

         B. Medical and Opinion Evidence

         Plaintiff's arguments on appeal focus on asserted disability stemming from her obesity, back pain, and radiculopathy which she contends prevent her from standing for six hours in an eight-hour workday, as required to maintain full-time employment. (ECF No. 20 at 27.) Therefore, the Court's summary of the evidence focuses on those impairments.

         Plaintiff was treated at UF Physicians in 2012 for complaints of back, hip, and leg pain and history of falls as well as other conditions, such as asthma, that are not relevant to her appeal. At one visit, Plaintiff reported that her problems started following a motor vehicle accident in 2008. Plaintiff stated that the falls occurred because her left leg gave away. R. 416. In April 2012, Plaintiff presented with a right arm injury due to a fall on her stairs. R. 422-23. In May 2012, Plaintiff related that her symptoms were initially on the left side but had progressed to the right. She complained of right leg weakness resulting in falls. Her neurological exam was positive for weakness. R. 419-21. As of June 2012, Plaintiff was not willing to repeat imaging studies that reportedly were done in the past. Plaintiff complained of weight gain, but stated that she was unable to exercise due to falls. R. 416-18.

         Following her application for SSI, Plaintiff sought care at UF Health's neurology clinic in December 2012 for lower back and right leg pain. Plaintiff related a history of being hit by a patient in 2008 when she was working as a CNA, resulting in a back injury. She alleged inability to sit for long periods, frequent falling, right leg weakness, and right hip pain. R. 390. Plaintiff had a positive straight leg raising test, but all other tests reflected 5/5 strength in upper and lower extremities. The physician expressed concern about L5-S1 radiculopathy, and the plan was to order imaging of the lumbar spine and hip. Plaintiff's weight was reported as 265 pounds. The neurologist prescribed Mobic for pain. R. 392-93.

         At a followup visit with her family practitioner, Plaintiff's physical examination findings were normal and her psychiatric status was assessed as normal. Plaintiff reported some relief from the Mobic. R. 396-97. Plaintiff did not follow up ...

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