United States District Court, S.D. Florida
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
M. SIMONTON CHIEF UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the cross-motions for summary
judgment filed by Plaintiff Eric Leotis Scott
("Plaintiff") and by Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security Administration
("Defendant"), ECF Nos.  and . The parties
have consented to the exercise of jurisdiction by a United
States Magistrate Judge to conduct any and all proceedings in
this case, ECF No. . The summary judgment motions are now
ripe for disposition.
reasons stated below, the undersigned recommends that
Plaintiff's Motion for Summary Judgment, ECF No.  be
GRANTED, and Defendant's Motion for Summary Judgment, ECF
No.  be DENIED.
August 1998, at the age of three, Plaintiff was found
disabled based on an application for Social Security Income.
(R. 77). The Plaintiff turned 18 on March 14, 2012,
triggering the requirement that the Plaintiff's
eligibility for disability benefits be redetermined under the
rules for determining disability in adults. (R. 77). The
agency conducted a disability review, and on August 9, 2012,
it was determined that Plaintiff's disability had ceased
as of August 1, 2012, because he did not meet the adult
requirements for disability. (R. 77). Upon Plaintiff's
request for reconsideration, the Commissioner's
disability hearing officer conducted a hearing on April 23,
2013. (R. 165-169). A decision was issued on June 10, 2013,
affirming the cessation of Plaintiff's disability
benefits. (R. 179).
Plaintiff requested a hearing before an administrative law
judge (“ALJ”). (R. 77). A hearing was commenced
on October 16, 2014, but the Plaintiff had been unable to
obtain counsel and requested a one-time postponement so that
he could do so. (R. 140). A hearing was held on February 6,
2015. (R. 93, 264). Plaintiff was unrepresented, and signed a
waiver of his right to representation. (R. 93). On March 16,
2015, the ALJ issued a decision finding that Plaintiff's
disability ended on August 1, 2012, and that Plaintiff had
not become disabled again since that date. (R. 77-85). The
Plaintiff requested a review of the ALJ's decision, which
was denied by the Appeals Council on July 6, 2016, ECF No.
 at 2.
exhausted all administrative remedies, the Plaintiff timely
filed the pending Complaint seeking judicial review of the
administrative proceedings, ECF No. . The Plaintiff
requests this Court to reverse for an award of benefits, or,
in the alternative, the Plaintiff requests this Court to
remand this matter to the Commissioner for reconsideration of
the evidence, ECF No.  at 4.
LEGAL ISSUES PRESENTED
Motion for Summary Judgment, the Plaintiff contends that the
ALJ committed errors which precluded the Plaintiff from
obtaining benefits. The alleged errors can be summarized as
the Plaintiff alleging that the ALJ failed to properly assess
the medical evidence of record, failed to conduct a proper
credibility assessment, and failed to develop a full and fair
record, ECF No. .
Defendant contends in its Motion for Summary Judgment and
Response to Plaintiff's Motion for Summary Judgment that
substantial evidence supports the ALJ's assessment of
Plaintiff's symptoms, any error by the ALJ in failing to
address a medical source opinion was harmless, substantial
evidence supports the ALJ's Step Five finding, and the
ALJ fully and fairly developed the record, ECF No. .
STANDARD OF REVIEW
review of the ALJ's decision in disability cases is
limited to determining whether the record contains
substantial evidence to support the ALJ's factual
findings and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401, (1971); Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir. 1990). “Substantial evidence” is more than a
scintilla, but less than preponderance and is generally
defined as such relevant evidence which a reasonable mind
would accept as adequate to support a conclusion. Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997);
Bloodworth v. Heckler, 703 F.2d 1233, 1239 (11th
reviewing the evidence, the Court may not reweigh evidence or
substitute its judgment for that of the ALJ, and even if the
evidence “preponderates” against the
Commissioner's decision, the reviewing court must affirm
if the decision is supported by substantial evidence.
Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991); Baker v. Sullivan, 880 F.2d 319, 321 (11th
Cir. 1989). This restrictive standard of review, however,
applies only to findings of fact. No presumption of validity
attaches to the Commissioner's conclusions of law, which
are reviewed de novo, including the determination of the
proper standard to be applied in reviewing claims.
Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th
Cir. 1991) (“The Commissioner's failure to apply
the correct law or to provide the reviewing court with
sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.”);
Martin v. Sullivan, 894 F.2d at 1529.
FRAMEWORK FOR ANALYSIS
1614(a)(3)(H) of the Social Security Act of 1935 (the
“Act”) provides that individuals who are eligible
for supplemental security income benefits under the age of
eighteen must have their disability redetermined at age 18
under the rules for disability used for adults. Demps v.
Astrue, No. 3-10-cv-621-J-12MCR, 2011 WL 4530843, at *3
(M.D. Fla. Aug. 2, 2011), report and recommendation adopted,
No. 3:10-cv-621-J-12MCR, 2011 WL 4549603 (M.D. Fla. Sept. 29,
2011). Additionally, the Act provides that the medical
improvements review standard in section 1614(a)(4) does not
apply to disability redeterminations at age 18. Id.
Instead, the definition of disability that must be applied is
the definition used for adults who file new applications for
supplemental security income benefits based on disability.
this standard, the Social Security Administration applies a
five-step sequential analysis to make a disability
determination. 20 C.F.R. § 416.920(a)(4). The analysis
follows each step in order, and the analysis ceases if at a
certain step the ALJ is able to determine, based on the
applicable criteria, either that the claimant is disabled or
that the claimant is not disabled.
one is a determination of whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 416.920(b).
“Substantial work activity” is work activity that
involves doing significant physical or mental activities. 20
C.F.R. § 416.972(a). “Gainful work activity”
is work that is usually done for pay or profit, whether or
not a profit is realized. 20 C.F.R. § 416.972(b). If an
individual has earnings from employment or self-employment
above a specific level set out in the regulations, it is
presumed that he has demonstrated the ability to engage in
substantial gainful activity. 20 C.F.R. §§ 416.974,
416.975. If an individual has been participating in
substantial gainful activity, he will not be considered
disabled, regardless of physical or mental impairment,
despite the severity of symptoms, age, education, and work
experience. The analysis proceeds to step two if the
individual is not engaging in substantial gainful activity.
case at bar, there was no step one determination because it
is not used when redetermining disability at age 18.
See 20 CFR 416.987(b).
second step, the claimant must establish that he has a severe
impairment. Step two has been described as the
“filter” which requires the denial of any
disability claim where no severe impairment or combination of
impairments is present. Jamison v. Bowen, 814 F.2d
585, 588 (11th Cir. 1987). This step has also been recognized
as a “screening” to eliminate groundless claims.
Stratton v. Bowen, 827 F.2d 1447, 1452 (11th Cir.
1987). The ALJ makes a severity determination regarding a
classification of the claimant's medically determinable
impairment or combination of impairments. 20 C.F.R. §
416.920(c). To be severe, an impairment or combination of
impairments must significantly limit an individual's
physical or mental ability to perform basic work activities.
20 C.F.R. § 416.921(a). An impairment or combination of
impairments is "not severe" when medical and other
evidence establish only a slight abnormality or a combination
of slight abnormalities that would have no more than a
minimal effect on an individual's ability to work. 20
C.F.R. § 416.921; Social Security Rulings (SSRs) 85-28,
96-3p, and 96-4p.
an impairment or combination of impairments is considered to
be not severe if it does not significantly limit a
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. § 416.921(a). Basic work
activities are the abilities and aptitudes necessary to do
most jobs. These include: (1) physical functions such as
walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing,
hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5)
responding appropriately to supervision, co-workers and usual
work situations; and (6) dealing with changes in a routine
work setting. C.F.R. § 416.921(b).
evaluation of the severity of mental impairments is governed
by 20 C.F.R. § 416.920(a). This regulation sets forth a
special technique to be used to determine whether a mental
impairment is severe at step two. Specifically, the ALJ is
required to rate the degree of limitation in four functional
areas: activities of daily living; social functioning;
concentration, persistence, or pace; and, episodes of
decompensation. 20 C.F.R. § 416.920a(c)(3). A five-point
scale is used to rate the degree of limitation in the first
three areas: none, mild, moderate, marked, and extreme. The
last area, episodes of decompensation, is rated on a
four-point scale: none, one, two, three, and four or more. 20
C.F.R. § 416.920a(c)(4). If the degree of limitation in
the first three areas is “none” or
“mild” and the fourth area is “none,
” the impairment is generally considered “not
severe, unless the evidence otherwise indicates that there is
more than a minimal limitation” in the ability to do
basic work activities. 20 C.F.R § 416.920a(d)(1).
claimant does not have a severe medically determinable
impairment or combination of impairments, he is not disabled
and the analysis ends here. If the ALJ finds that the
claimant has a severe medically determinable impairment or
combination of impairments, the process advances to the third
case at bar, the ALJ found that Plaintiff had the severe
impairments of learning disorder, schizoaffective disorder
depressed type with psychosis, mood disorder, and bipolar
disorder. (R. 79). Because the ALJ found at least one severe
impairment, the ALJ then proceeded to the next step.
third step requires the ALJ to consider if Plaintiff's
impairment or combination of impairments is at the level of
severity to either meet or medically equal the criteria of an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1
("the Listings"). A claimant is considered to be
disabled if his impairment or combination of impairments: 1)
is severe enough to meet or to medically equal the criteria
of a listing; and 2) meets the duration requirement under 20
C.F.R. § 416.909. If the claimant's impairment or
combination of impairments does not meet the criteria
specified in the Listings, then the ALJ must proceed to the
case at bar, the ALJ found that the Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.
79). In reaching this conclusion, the ALJ considered the
criteria of listings 12.02, 12.03, and 12.04 and considered
whether the “paragraph B” criteria were
satisfied. (R. 79). With respect to these criteria, the ALJ
found that the Plaintiff had mild restrictions in activities
of daily living, moderate difficulties in social function,
and moderate difficulties as related to concentration,
persistence or pace. (R. 29). As for episodes of
decompensation, the ALJ found that the Plaintiff had not
experienced any episodes of decompensation of extended
duration. (R. 80). The ALJ noted that record “is devoid
any [sic] evidence of inpatient hospitalizations for an
exacerbation of any mental symptoms at any time pertinent to
this decision.” (R. 80). The ALJ also considered
whether the “paragraph C” criteria were
satisfied, and determined that the record was devoid of
repeated episodes of decompensation, potential episodes of
decompensation or the inability to function outside a highly
supportive living arrangement or outside the area of the
claimant's home. (R. 80-81). The analysis then proceeded
to step four.
four is a two-pronged analysis that involves a determination
of whether the impairments prevent the claimant from
performing his past relevant work. First, the ALJ must
determine the claimant's Residual Functional Capacity
(“RFC”) as described in 20 C.F.R. §
416.920(e). RFC measures a person's ability to do
physical and mental work activities on a sustained basis
despite limitations caused by their impairments. In making
this determination, the ALJ must consider all of the
claimant's impairments, regardless of the level of
severity. 20 C.F.R. §§ 416.920(e), 416.945; SSR
96-8p; Tuggerson-Brown v. Comm'r of Soc. Sec.,
No. 13-14168, 2014 WL 3643790, at *2 (11th Cir. Jul. 24,
2014) (an ALJ is required to consider all impairments,
regardless of severity, in conjunction with one another in
performing the latter steps of the sequential evaluation).
case at bar, the ALJ found that the Plaintiff had the RFC to
perform a full range of work at all exertional levels but
with the following non-exertional limitations: “the
claimant would be limited to performing simple, routine, and
repetitive tasks.” (R. 83). The ALJ found that,
“the claimant's medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, the claimant's statements concerning the
intensity, persistence, and limiting effects of those
symptoms are not entirely credible.”
determining a claimant's RFC, the step four analysis
requires a determination of whether a claimant has the RFC to
perform the requirements of his past relevant work. 20 C.F.R.
§ 416.965. In the case at bar, the ALJ determined that
Plaintiff had no past relevant work. (R. 84).
the Plaintiff did not have any past relevant work, the ALJ
proceed to step five.
claimant is not able to perform his past relevant work, the
ALJ progresses to the fifth step. At this step, the burden of
production shifts to the Commissioner to show that other work
that the claimant can perform exists in significant numbers
in the national economy. Jones v. Apfel, 190 F.3d
1224, 128 (11th Cir. 1999); 20 C.F.R. § 416.912(g) and
416.960(c). In making this determination, the ALJ considers a
claimant's RFC as determined in connection with step
four, as well as the claimant's age, education, and work
experience to determine if he can perform any other work.
upon the testimony of the vocational expert
(“VE”) the ALJ found that the Plaintiff could
perform work as a landscape laborer, cleaner, and laundry
worker. (R. 36).
time of his hearing, the Plaintiff was a 20 year-old man. (R.
81). The Plaintiff has a history of learning disorder;
schizoaffective disorder, depressed type with psychosis; mood
disorder; and bipolar disorder. (R. 81). The Plaintiff
received childhood disability benefits based upon having met
the childhood listing for organic mental disorders under
112.02 (A)(B). (R. 82.). The Plaintiff attended school
through the eleventh grade, attending a combination of
general and exceptional education classes, (R. 83), but did
not graduate or receive any equivalent degree. (R. 99-100).
At the time of his hearing, the Plaintiff was no longer
enrolled in high school. (R. 99-100). The Plaintiff resides
with his father. (R. 120). The Plaintiff testified that he is
not and has never been employed. (R. 101-02).
February 23, 2013, Patricia Scott, the Plaintiff's
mother, completed a Function Report regarding the Plaintiff.
(R. 379). Ms. Scott has known the Plaintiff all his
life and they lived together at the time she completed the
report. (R. 379). Ms. Scott described the Plaintiff's
daily routine as consisting of going to school, coming home,
eating, going to his room, and listening to music or playing
video games. (R. 380). She reported that the Plaintiff did
not care for or assist with the care of anyone other than
himself or any pets or other animals, but was able to take
care of his own personal care and medications and did not
need any reminders. (R. 380-81). The Plaintiff did not know
how to cook and could not prepare his own meals, but he was
able to clean his room and do yard work, though very slowly.
(R. 381-82). The Plaintiff was able to go out alone on a
daily basis, travelling by foot. (R. 382). He was able to
shop for “video games, clothes, junk food” and he
did so “three times a month;” it “takes
hours.” (R. 382). The Plaintiff did not pay bills, have
his own bank accounts, or use checkbooks or money orders, but
he was able to count change. (R. 382). Ms. Scott reported
that the Plaintiff's disability affected his
concentration, understanding, following instructions, and
getting along with others and that he “has [an]
attitude problem with me and everyone else.” (R. 384).
The Plaintiff follows written instructions very poorly and
spoken instructions “somewhat ok, ” handles
stress poorly, and his response to changes in his routine was
unknown because he does the same thing every day. (R.
384-85). The Plaintiff did not take any medications at that
time. (R. 386).
20, 2002, Dr. Jack R. Weitz conducted a Learning Disabilities
Evaluation of the Plaintiff. (R. 544). The Plaintiff was
eight years old at the time of this evaluation. (R. 544). Dr.
Weitz was unable to provide a diagnosis of the
Plaintiff's intellectual ability or the presence of a
learning disability due to the Plaintiff's failure to
complete all the testing tasks. Dr. Weitz did, however,
diagnose the Plaintiff with dysthymia, or persistent
depressive disorder, noting that the Plaintiff had displayed
feelings of inadequacy and low self-esteem. (R. 545). Dr.
Weitz recommended mental health treatment for the Plaintiff
and that his ability to manage his own benefits should be
reevaluated upon reaching adulthood. (R. 545).
24, 2012, Dr. Angela C. Brinson, Licensed School
Psychologist, conducted a psychological evaluation of
Plaintiff to aid in the determination of this case. (R. 565).
At the time of this evaluation, the Plaintiff was 18 years of
age. (R. 565). The Plaintiff arrived on-time and was
appropriately groomed and attired. (R. 565). The Plaintiff
was accompanied to the session by his maternal aunt, Patricia
Ferguson. (R. 565). Dr. Brinson noted that “[the
Plaintiff]'s level of attention and concentration were
appropriate.” (R. 566). On the Wechsler Adult
Intelligence Scale (WAIS-IV) test to assess intellectual
functioning, Dr. Brinson concluded the Plaintiff is
functioning “in the Borderline range of intellectual
ability relative to his same age peers.” (R. 566).
Specifically assessing the Plaintiff's working memory
abilities, which involve “attention, concentration,
mental control, and reasoning, ” Dr. Brinson concluded
that the Plaintiff's working memory skills are in the low
average range. (R. 566). Dr. Brinson also administered the
WJ-III to assess the Plaintiff's current level of
academic achievement, and concluded the Plaintiff was
functioning in the “low average to deficient range of
academic achievement, ” scoring on a 5th
grade level for Broad Reading, and on a sixth grade level for
Broad Mathematics. Dr. Brinson ultimately concluded that the
Plaintiff's cognitive abilities are consistent with a
learning disorder. (R. 569).
August 8, 2012, Alicia Maki, Ph.D., completed a Form 2506
psychiatric review of the Plaintiff. (R. 584). Dr. Maki noted
that the Plaintiff has “[n]o past [history] of mental
health [treatment] nor [history] of psych
hospitalizations.” (R. 584). Dr. Maki concluded that
the Plaintiff's statements as to his disability were
partially credible, because the “alleged impairments