United States District Court, N.D. Florida, Gainesville Division
LUTHER W. CUMMINGS, 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 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. Plaintiff last
met the insured status requirements for DIB on December 31,
2016. 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.)
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).
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.
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.
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.
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.
Findings of 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,
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.” 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.
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
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,  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.,  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.
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) 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).
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, ...