United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
a Social Security case referred to the undersigned United
States 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 Title II
application for period of disability and Disability Insurance
Benefits. After careful consideration of the entire record,
it is respectfully recommended that the decision of the
Commissioner be affirmed.
Procedural History and Facts
January 23, 2014, Plaintiff Dana Raney, IV, filed a Title II
application for disability insurance benefits (DIB) alleging
disability beginning on December 24, 2013, due to
Scheuermann's Kyphosis, spinal fusion, arthritis in back,
numbness in extremities, inability to sit for any length of
time, constant lower back pain, burning pain in upper back
and into shoulders, no range of motion in back and neck, and
shooting pain in both legs. Tr. 138-45.
application was denied initially on March 12, 2014, and upon
reconsideration on May 9, 2014. Tr. 61. Plaintiff requested a
hearing, which was held on March 21, 2016, in Jacksonville,
Florida, before Administrative Law Judge (ALJ) Gregory J.
Froehlich. Tr. 34-59. Plaintiff, who appeared with counsel,
testified and Kristin Panella, Vocational Expert appeared by
telephone and testified.
issued a decision on June 8, 2016, finding Plaintiff is not
disabled and not entitled to disability benefits. Tr. 17-28.
The Appeals Council denied Plaintiff's request for review
on April 26, 2017. Tr. 1. Thus, the decision of the ALJ
became the final decision of the Commissioner and is ripe for
review. Accordingly, Plaintiff, represented by counsel, filed
a Complaint for judicial review pursuant to 42 U.S.C.
§§ 1381, et seq., and 42 U.S.C. § 405(g).
See ECF No. 1.
age 40 at the time of the alleged onset date, testified at
the hearing that his past employment was as a delivery driver
involving tractor trailer and box trucks. Tr. 40. He said he
had to stop delivery because the lifting became too
physically demanding. Tr. 39. Plaintiff testified that he
gets headaches in the back of his head and cannot move his
head left, right, up, or down. Tr. 40, 51. He said he gets
numbness in both hands and has constant burning from his
cervical area down his right shoulder that requires him to
lay down throughout the day. Tr. 41.
testified that he has trouble lifting overhead and cannot do
many household chores like cooking and taking out the
garbage, although he tries to do dishes but has back spasms.
Tr. 41-42, 48. He testified that he needs help putting on his
socks. Tr. 48. He can manipulate small items like buttoning a
shirt, picking up a coin, and opening a jar lid, although
these tasks cause a burning sensation at the base of his
neck. Tr. 41-42.
drive but only in an emergency. Tr. 47. He said if he does
anything too long, like sitting or standing, he gets extreme
headaches in the back of his head. Tr. 42. He testified he
does not sleep well at night, and if his back relaxes during
the day, he may doze off. Tr. 49.
testified that he is able to stand only for five minutes
before he gets back spasms and burning sensations in his back
and down into his buttocks and legs. Id. He said he
alternates between standing and lying down every fifteen
minutes, and physical therapy did not work. Tr. 43. As for
walking, he said a doctor prescribed a walker for him to help
him balance because he gets dizzy sometimes. Id. He
does not know how far he can walk without his assistive
device because he has not tried. Tr. 51-52. He testified he
can lift about two pounds without a lot of pain. Tr. 51.
Plaintiff testified that everyday his neck pain, on average,
was about a seven. Tr. 44.
his lower back, Plaintiff testified that he cannot twist or
bend easily. When he showers, he makes sure someone is home.
Tr. 45. He said he has Scheuermann's
Kyphosis extending to where his surgery was and it
affects his hips, buttocks, and legs with what feels like an
electrical shock. Tr. 46, 49. “Harrington” rods
were placed in his thoracic spine when he was age seventeen.
Tr. 49, 51. Plaintiff testified he had some epidural
injections and nerve blocks, but they were not working so his
doctors decided not to do any more. Tr. 50-51.
proposed a hypothetical question to the vocational expert
describing a person of Plaintiff's age, education, and
past work of delivery driver or sales route driver, who is
limited to sedentary work with a 30-minute sit/stand option,
with occasional postural climbing, balancing, stooping,
kneeling, crouching, crawling, and overhead reaching, who
should not have concentrated exposure to vibrations, work
around mechanical parts, or at unprotected heights, and who
is limited to simple tasks taking a short time to learn up to
thirty days. Tr. 52-53. Under this hypothetical, the
vocational expert testified that the person would not be able
to perform past work as a delivery driver or sales route
driver. Tr. 53.
vocational expert testified there were other jobs that the
person would be able to perform, including order clerk, DOT
#209.567-014, sedentary exertion level, SVP of 2, unskilled,
with approximately 20, 000 jobs in the national economy;
charge account clerk, DOT #205.367-014, sedentary exertion
level, SVP of 2, unskilled, with approximately 17, 000 jobs
in the national economy; and document preparer, DOT
#249.587-018, sedentary exertion level, SVP of 2, unskilled,
with approximately 104, 000 jobs in the national
economy. Tr. 53.
proposed a second hypothetical identical to the first, but in
which the individual also must use a hand-held assistive
device to reach the workstation. Tr. 54. The vocational
expert testified that the person could still do the same
three representative jobs if, once the person reached the
workstation, they no longer needed the assistive device. Tr.
55. A third hypothetical added to the above limitation, the
requirement that the person be off task for at least 20
percent of the workday at unpredictable intervals and outside
normally permitted breaks. Id. The vocational expert
testified that such limitations would eliminate competitive
employment. The expert also opined that no more than one
absence a month would be tolerated in competitive employment.
for Plaintiff proposed an additional hypothetical to the
vocational expert in which the person could stand for only
ten minutes, need to lie down for twenty minutes, use an
assistive device practically all the time, and lift and carry
less than five pounds. Tr. 56. Under these hypothetical
facts, the vocational expert opined that these limitations
would eliminate all competitive employment. Id.
Findings of the ALJ
decision issued June 8, 2016, the ALJ made the following
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017. Tr. 19.
2. The claimant has not engaged in substantial gainful
activity since December 24, 2013, the alleged onset date.
3. The claimant has the following severe impairments:
degenerative disc disease (DDD) of the lumbar spine with
radiculopathy, history of spinal fusion from T5-L1, and
cervical DDD. Id.
4. The claimant does not have 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. 20.
The ALJ found that the record does not establish that the
claimant's impairments, either singly or in combination,
meets or equals in severity any listed impairment, and that
no treating or examining physician has mentioned findings
equivalent in severity to the criteria in any listed
5. After careful consideration of the entire record, the
claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except with a
30-minute sit/stand option; requires the use of a hand-held
assistive device to reach the work station but is not
required once he is at the work station; limited to
occasional climbing, balancing, stooping, kneeling, crouching
and crawling; limited to occasional overhead reaching; he
should not have concentrated exposure to vibrations, work
around moving, mechanical parts and work at unprotected
heights. Due to a variety of symptoms described, he is
limited to simple tasks with little variation that take a
short period of time to learn (up to and including 30 days)
and able to deal with changes in a routine work setting.
In making these findings, the ALJ noted that Plaintiff has a
history of treatment for back pain, citing first the
consultative examination by Sultan Ahmed, M.D., on March 3,
2014. Tr. 21. The examination revealed normal findings except
for paraspinal tenderness in the lower back and limited range
of motion. Tr. 21 (citing records at Tr. 247-48). Dr.
Ahmed's records showed intact sensation and normal gait,
but noted functional limitations for daily activities due to
lower back pain and right shoulder pain. Id. Dr.
Ahmed noted that Plaintiff does not use any assistive device
for ambulation. Tr. 247.
The ALJ also discussed the March 12, 2014, visit to Marlow
Hernandez, M.D., at Cano Medical Dental. Dr. Hernandez
reported Plaintiff's history of spinal stenosis and
Plaintiff's earlier surgery for Scheuermann's
Kyphosis, but found that Plaintiff ambulated without
difficulty. Tr. 22 (citing records at Tr. 283). The ALJ found
that a March 17, 2014, MRI of the cervical spine revealed a
posterior bulge at ¶ 3-4; left parasagittal disc
herniation and moderate neural foraminal narrowing and a
moderate degree of central canal narrowing at ¶ 4-5;
bulging annulus and mild uncovertebral joint arthropathy and
mild degree of central canal narrowing and mild degree of
bilateral neural foraminal narrowing at ¶ 5-6; bulging
annulus and mild to moderate degree of central canal
narrowing and left neural foraminal narrowing at ¶ 6-7
and bulging annulus at ¶ 7-Tl. Tr. 22 (citing records at
Tr. 270). The ALJ also noted an MRI of the thoracic spine,
which revealed unremarkable findings. Tr. 22 (citing records
at Tr. 271). The 2014 MRI of the lumbar spine revealed a
large disc herniation and facet arthropathy and osteophyte
complex that might be secondary to accelerated degeneration
below the fusion at ¶ 1-2; posterior disc herniation and
disc tear with mild degree of central canal stenosis at
¶ 4-5 and posterior bulging annulus and large disc
herniation with mild to moderate degree of central canal
narrowing and moderate to severe right and moderate left
neural foraminal narrowing at ¶ 5-S1 Tr. 22 (citing
records at 272-73).
The ALJ cited Plaintiff's medical visits in October,
November, and December to the emergency department of
Memorial Hospital West, Palms Medical Group, and Shands
Orthopedic Surgery, respectively, that noted the
musculoskeletal exams were generally unremarkable or normal,
and gait was generally normal. Tr. 22 (citing records at Tr.
313-316, 360-62, 347-48).
A March 15, 2016, MRI of the cervical spine revealed mild to
moderate diffuse cervical spondylosis. At ¶ 4-5, there
was a mild posterior broad-based spondylotic bulge with
congenitally short pedicles with moderate central canal
stenosis as well as prominent left-sided uncovertebral joint
hypertrophic degenerative changes with left lateral recess
stenosis and moderate to severe left foraminal narrowing. The
MRI showed that at ¶ 6-7, there was mild posterior
broad-based annular bulge with small posterocentral disc
protrusion and mild central canal stenosis and left neural
foraminal narrowing. At ¶ 5-6, there was mild posterior
broad-based annular disc bulge and small posterocentral disc
protrusion with mild central canal stenosis. Tr. 24 (citing
records at Tr. 389-90). The March 2016 MRI of Plaintiff's
lumbar spine revealed moderate degenerative disc disease
scattered throughout the lumbar spine. At ¶ 4-5, there
was moderate circumferential disc bulge with posterocentral
disc protrusion and mild central canal stenosis. At ¶
5-S1, there was more prominent disc space narrowing and
prominent circumferential disc bulge. Prominent left
paracentral disc protrusion with extrusion was noted with
moderate central canal stenosis. There was also
circumferential disc bulge that produced moderate bilateral
neural foraminal narrowing. Tr. 24 (citing records at Tr.
The ALJ recognized that Plaintiff has had some degenerative
changes and new findings at ¶ 5-S1, and that when
reviewed in conjunction with his physical examination
findings, the test results are consistent with the tenderness
and reduced range of motion. However, the ALJ found that the
objective findings support the physical examination
limitations and are consistent with the RFC. Tr. 24 (citing
records at Tr. 270-72, 356-59, 389-92). Plaintiff's
reports of how long he could stand or sit were not reported
to his providers and his claims of ability to lift/carry only
2 pounds were not consistent with medical records showing
intact strength. Tr. 25.
6. The claimant is unable to perform any past relevant work.
Plaintiff's past relevant work was described as sales
route driver, DOT #292.353-010, SVP of 3, medium exertion
7. The claimant was 40 years old, which is defined as a
younger individual age 18-44, on the alleged disability onset
8. The claimant has at least a high school education and is
able to communicate in English. Id.
9. 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. Id.
10. Considering claimants' age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform. Id.
Based on the RFC found by the ALJ and the testimony of the
vocational expert at the hearing, the ALJ found that
Plaintiff could perform the representative jobs of order
clerk, DOT #209.567-014, sedentary exertion level, SVP of 2,
unskilled, with approximately 20, 000 jobs in the national
economy; charge account clerk, DOT #205.367-014, sedentary
exertion level, SVP of 2, unskilled, with approximately 17,
000 jobs in the national economy; and document preparer, DOT
#249.587-018, sedentary exertion level, SVP of 2, unskilled,
with approximately 104, 000 jobs in the national economy. Tr.
The ALJ noted that although the DOT does not specifically
address a sit/stand option or the use of a hand held
assistive device, the vocational expert testified at the
hearing that, based on her education and experience as well
as her analysis of jobs on site in the field, the
representative jobs listed would allow the individual the
ability of a sit/stand option. Id.
11. The claimant has not been under a disability, as defined
in the Social Security Act, from December 24, 2013, through
the date of the decision [June 8, 2016]. Id.
on these findings, the ALJ found that Plaintiff is not
disabled under sections 216(i) and 223(d) of the Social
Security Act and is therefore not entitled to disability
benefits. Tr. 28.
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). The Court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for
that of the Commissioner, Bloodsworth, 703 F.2d at
1239, although the Court must scrutinize the entire record,
consider evidence detracting from the evidence on which the
Commissioner relied, and determine the reasonableness of the
factual findings. Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992); Parker v. Bowen, 793 F.2d
1177, 1180 (11th Cir. 1986). Review is deferential, but the
reviewing court conducts what has been referred to as
“an independent review of the record.” Flynn
v. Heckler, 768 F.2d 1273, 1273 (11th Cir. 1985).
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. § 404.1509
(duration requirement). 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 disability
insurance benefits if he is under a disability prior to the
expiration of his insured status. See 42 U.S.C.
§ 423(a)(1)(A); Moore, 405 F.3d at 1211;
Torres v. Sec'y of Health & Human Servs.,
845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v.
Sec'y of Health & Human Servs., 818 F.2d 96, 97
(1st Cir. 1986).
to 20 C.F.R. § 404.1520(a)(4)(i)-(v), the Commissioner
analyzes a claim in five steps:
1. Is the individual currently engaged in substantial gainful
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. ...