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Raney v. Berryhill

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

April 1, 2018

DANA RANEY, IV, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         This is 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.

         I. Procedural History and Facts

         On 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.[1]

         Plaintiff's 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.[2]

         The ALJ 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.

         A. Hearing Testimony

         Plaintiff, 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.

         Plaintiff 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.

         He can drive but only in an emergency.[3] 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.

         Plaintiff 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.

         As to 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[4] 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.

         The ALJ 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.

         The 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.[5] Tr. 53.

         The ALJ 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. Id.

         Counsel 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.

         II. Findings of the ALJ

         In the decision issued June 8, 2016, the ALJ made the following pertinent findings:

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. Id.
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 impairment. Id.
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;[6] 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. Id.
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. 391-92).
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. Tr. 26.
Plaintiff's past relevant work was described as sales route driver, DOT #292.353-010, SVP of 3, medium exertion level. Id.
7. The claimant was 40 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. Id.
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. 27.
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.

         Based 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.

         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] 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).

         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. § 404.1509 (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).

         Pursuant 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 activity?
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. ...

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