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Cummings v. Berryhill

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

March 14, 2018

LUTHER W. CUMMINGS, 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 8, 2013, Plaintiff, Luther W. Cummings, filed applications for SSI and a period of disability and DIB, respectively, alleging disability beginning June 1, 2011, based on scoliosis, heart attacks (stent in heart), knee impairments (both knees swollen), osteoporosis, breathing problems, left eye vision problems, and mental stress. Tr. 32, 36, 101-02, 256-68, 278, 283, 357, 362.[1] Plaintiff last met the insured status requirements for DIB on December 31, 2016.[2] Tr. 32, 337, 358. (The ALJ noted: “The claimant filed prior applications for benefits under Titles II and XVI on May 23, 2013, which are not being reopened.” Tr. 32; see also Califano v. Sanders, 430 U.S. 99, 107-09 (1977). This determination is not the subject of review in this case.)

         Plaintiff's applications were denied initially on February 21, 2014, and upon reconsideration on May 20, 2014. Tr. 32, 155-60, 164-73. On June 17, 2014, Plaintiff requested a hearing. Tr. 32, 174-75. The video hearing was held on February 4, 2016, before Administrative Law Judge (ALJ) Kelley Fitzgerald who presided from Jacksonville, Florida. Tr. 32, 55-67, 71-80. Plaintiff was represented by Pamela Dunmore, an attorney, who appeared with Plaintiff in Gainesville, Florida. Tr. 32, 55. Plaintiff testified during the hearing. Tr. 59-77. Donna P. Mancini, an impartial vocational expert, testified briefly during the hearing. Tr. 32, 67-71, 78-89, 389-90 (Resume).

         On March 4, 2016, the ALJ issued a partially favorable decision and determined that Plaintiff was not disabled prior to February 15, 2015, the date Plaintiff's age category changed, but became disabled on that date and has continued to be disabled through the date of the ALJ's decision. Tr. 46.

         On April 12, 2016, Plaintiff's representative requested review of the ALJ's decision. Tr. 27. Plaintiff asked “the Appeals Council to reverse the ALJ's partially favorable decision to the extent of finding the claimant disabled and entitled to disability insurance benefits beginning July 2, 2012 [, ] through February 14, 2015. There is no competent substantial evidence to support the ALJ's finding that the claimant was not disabled from July 2, 2012 [, ] through February 14, 2015.” Id. On March 22, 2017, the Appeals Council notified Plaintiff's representative that it granted the request for review. Tr. 250. The Appeals Council indicated that it planned “to make a decision finding [Plaintiff] became disabled on August 15, 2015.” Tr. 251. The Appeals Council explained the bases for its intended action, which was to ultimately find that Plaintiff became disabled on August 15, 2015, the day before when Plaintiff's 55th birthday for DIB and SSI benefits, rather than February 15, 2015, when Plaintiff was 54½ years old. Tr. 251, 254. Plaintiff was afforded the opportunity to provide the Appeals Council with additional information within 30 days. Tr. 254. No. additional information was provided.

         On April 27, 2017, the Appeals Council entered a decision that was partially favorable to Plaintiff. Tr. 7-17. The Appeals Council agreed with and adopted the ALJ's findings under steps one through four of the five-step sequential evaluation process discussed below. Tr. 12. Importantly, the Appeals Council did “not adopt the finding of the hearing decision, that the claimant's age category changed to that of advanced age, on February 15, 2015” and explained the reasons for this conclusion. Tr. 13 (citations omitted). Rather, the Appeals Council determined that Plaintiff was disabled beginning August 15, 2015, and awarded DIB and SSI benefits from that day forward and denied benefits prior to that date. Tr. 13.

         On June 26, 2017, Plaintiff, by counsel, filed a Complaint with this Court seeking review of the decisions rendered by the ALJ and Appeals Council. ECF No. 1. The parties filed memoranda of law, ECF Nos. 16 and 17, which have been considered.

         II. Findings of the ALJ

         The ALJ and the Appeals Council made several findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016. Tr. 13, 34.
2. The claimant has not engaged in substantial gainful activity since the amended alleged onset date of July 12, 2012. Id.
3. The claimant has the following severe impairments: heart disease, disorders of the spine, disorders of the left knee, and obesity. Id. The ALJ determined further that Plaintiff's history of gastroesophageal reflux disease (GERD) did not impose more than a minimal limitation on Plaintiff's ability to perform basic work activities and was non-severe. Tr. 35.
4. Since the amended alleged onset date of disability, July 12, 2012, the claimant has not had 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. 14, 35.
5. Unlike the ALJ who determined Plaintiff had the residual functional capacity [RFC] “to perform light work” with limitations, Tr. 35, the Appeals Council determined that Plaintiff had the RFC “to perform a reduced range of light exertional work” with the same limitations, Tr. 14. Plaintiff is capable of lifting/carrying up to 10 pounds frequently and 20 pounds occasionally; sitting about six hours in an eight-hour workday; standing and walking about six hours each in an eight-hour workday; no more than frequent climbing of ramps and stair[s] and balancing; no more than occasional stooping, kneeling, crouching, crawling, or climbing of ladders, ropes, or scaffolds; and no concentrated exposure to extreme cold or hazards (machinery, heights, etc.). Tr. 14, 35.
6. The claimant is unable to perform any past relevant work, which included clean-up worker, medium exertional level, an SVP of 2 per the Dictionary of Occupational Titles (DOT) and as performed and stock clerk, heavy exertional level, with an SVP of 4 per the DOT and an SVP of 2 as performed. Tr. 14, 44.
7. The ALJ and the Appeals Council differed in their approach to claimant's age. Tr. 14, 44. The ALJ determined that “[p]rior to the established disability onset date, the claimant was an individual closely approaching advanced age” and that “[a]pplying the age categories non-mechanically, and considering the additional adversities in this case, on February 15, 2015, the claimant's age category changed to an individual of advanced age.” Tr. 44. The Appeals Council ultimately determined that Plaintiff “is an individual closely approaching advanced age, with a limited 11thgrade education, through August 14, 2015.”[3] Tr. 14.
8. The ALJ determined that “[p]rior to February 15, 2015, 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. Beginning on February 15, 2015, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).” Tr. 44. The ALJ further determined that Plaintiff had no transferable skills. Tr. 45.
The Appeals Council determined:
8. Using Medical-Vocational Rule 202.11 (Table No. 2 of 20 CFR Part 404, Subpart P, Appendix 2) as a framework for decision making, the Appeals Council finds that, from the alleged onset date of July 12, 2012 [, ] through August 14, 2015, for purposes of both Title II and Title XVI, the claimant was not under a ‘disability' because of the ability to perform work in the significant numbers of jobs in the national economy.
9. Medical-Vocational Rule 202.02 directs a finding that the claimant became disabled on August 15, 2015 (the day before his 55th birthday), the date he turned 55 years of age, for purposes of his Title II and Title XVI claims.
Tr. 14; see Tr. 45 for the ALJ's discussion of Rule 202.11.
9. At step 5 of the sequential evaluation process, the ALJ determined that “[p]rior to February 15, 2015, the date the claimant's age category changed, considering the claimant's age, education, work experience, and [RFC], there were jobs that existed in significant numbers in the national economy that the claimant could have performed.” Tr. 45. As noted above, the ALJ determined that prior to February 15, 2015, not as determined by the Appeals Council prior to August 15, 2015, [4] the Plaintiff had the RFC to perform the full range of light work with limitations. The ALJ added that Plaintiff's ability to perform all or substantially all the requirements of this level work was impeded by additional limitations and to determine the extent to which these limitations eroded the unskilled light occupational base, the ALJ asked the vocational expert whether there were jobs in the national economy for an individual with the Plaintiff's age, education, work experience, and RFC. Considering these factors, the vocational expert testified that such a person, here Plaintiff, could perform the representative jobs of marker, cleaner, housekeeping, and router each at the light exertional level with an SVP of 2, or unskilled.[5], [6] Tr. 45, 70-71.
10. The ALJ determined that Plaintiff was not disabled prior to February 15, 2015, but became disabled on that date and continued to be disabled through the date of the ALJ's decision, March 4, 2016. Tr. 46. The Appeals Council determined that Plaintiff was not disabled prior to August 15, 2015, (the day before Plaintiff's 55th birthday) but became disabled beginning on August 15, 2015, a six-month difference. Tr. 14. Plaintiff turned 55 years of age on August 16, 2015. ECF No. 16 at 18. In this case, Plaintiff claims the Appeals Council erred in denying Plaintiff benefits prior to August 15, 2015, but does not distinguish between that date and February 15, 2015. Id.

         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).[7]

         “In making an initial determination of disability, the examiner must consider four factors: ‘(1) objectve 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).[8]

         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 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, ...


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