Smith v. Berryhill

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.

         This case has been referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) and Northern District of Florida Local Rules 72.1(A), 72.2(D), and 72.3, relating to review of administrative determinations under the Social Security Act (“Act”). The case is now before the court pursuant to 42 U.S.C. § 405(g) for review of a final determination of the Commissioner of Social Security (“Commissioner”) denying claimant's applications for disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401-34, and supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381-83. Upon review of the record before the court, the undersigned concludes the findings of fact and determinations of the Commissioner are not supported by substantial evidence and the Commissioner's decision, therefore, should be reversed and the matter remanded for further proceedings consistent with this Report and Recommendation.

         ISSUES ON REVIEW

         Mr. Smith, who will be referred to as claimant, plaintiff, or by name, raises the following issues on appeal: (1) whether the Administrative Law Judge (“ALJ”) erred in assigning an “internally inconsistent” residual functional capacity; and (2) whether the ALJ's decision is based on substantial evidence given the ALJ's alleged erroneous reliance on the vocational expert's testimony.^[1]

         PROCEDURAL HISTORY

         Mr. Smith filed applications for DIB and SSI on March 25, 2014, alleging disability beginning February 15, 2014.^[2] T. 135-36.^[3] His claims were denied initially and on reconsideration. T. 135, 163. Mr. Smith appeared for a hearing before an Administrative Law Judge (“ALJ”) on October 18, 2016. T. 48. On December 7, 2016, the ALJ issued a decision denying Mr. Smith's claims for benefits. T. 4-32. Mr. Smith petitioned the Appeals Council for review of the ALJ's decision. T. 41. The Appeals Council denied the request. T. 167. The ALJ's decision thus became the final determination of the Commissioner.

         FINDINGS OF THE ALJ

         In his written decision, the ALJ made a number of findings relevant to the issues raised in this appeal:

• “The claimant has not engaged in substantial gainful activity since March 25, 2014, the application date (20 CFR 416.971 et seq.).” T. 6.

• “The claimant has the following severe impairments: chondromalacia of the patella and degenerative joint disease of the right knee, posttraumatic deformity of the distal tibia, gout, arthritis, hypertension, diabetes mellitus, status post cerebrovascular accident, posttraumatic stress disorder by history, and a mood disorder by history (20 CFR 416.920(c)).” T. 7.

• “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 (20 CFR 416.920(d), 416.925 and 416.926).” T. 8.

• “[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except the claimant can continuously use both hands for grasping and fine manipulation; can only occasionally use his left arm to push, pull, or operate hand controls; can never use his right arm to push, pull, or operate hand controls; can only occasionally use his left leg to push, pull, or operate foot controls; can never use his right leg to push, pull, or operate foot controls; can only frequently stoop; can never kneel, crouch, or crawl; can never climb ladders, ropes, and scaffolds; can only occasionally climb ramps and stairs; can never balance on his right leg but can occasionally balance on his left leg; can never reach overhead with his right arm; can only frequently reach overhead with his left arm; must avoid all exposure to extreme temperatures and workplace hazards such as unprotected heights and moving machinery; and can never operate a motor vehicle which requires the operation of a clutch. The claimant can experience pain which occasionally interferes with concentration, persistence, and pace but does not require the claimant to abandon his work or workstation. This is not a continuous concept and occurs up to 20% of the time. The claimant can only frequently respond appropriately to supervisors; can only occasionally respond appropriately to coworkers and the general public; can constantly use his judgment for simple work-related decisions, but only occasionally use his judgment for complex or detailed work-related decisions; can respond appropriately to infrequent and gradual changes in a routine work setting; can constantly understand, remember, and carry out simple instructions, but only occasionally understand, remember, and carry out complex or detailed instructions; and can maintain concentration, persistence, and pace for two hours at a time with regular breaks; can maintain activities of daily living; and experiences no episodes of decompensation each of extended duration.” T. 10.

• “The claimant is unable to perform any past relevant work (20 CFR 416.965).” T. 25.

• “Considering the claimant's 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 (20 CFR 416.969 and 416.969(a)).” T. 26.

• “The claimant has not been under a disability, as defined in the Social Security Act, since March 25, 2014, the date the application was filed

(20 CFR 416.920(g)).” T. 27.

         STANDARD OF REVIEW

         A federal court reviews the “Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when convinced that it is not supported by substantial evidence or that proper legal standards were not applied.”). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.'” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). Even if the evidence preponderates against the Commissioner's decision, the decision must be affirmed if supported by substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

         When reviewing a Social Security disability case, the court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner.]'” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining whether substantial evidence supports a decision, we give great deference to the ALJ's factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). A reviewing court also may not look “only to those parts of the record which support the ALJ[, ]” but instead “must view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is deferential to a point, but the reviewing court conducts what has been referred to as “an independent review of the record.” Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985).^[4]

         The Social Security Act defines disability as 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). To qualify as a disability, the physical or mental impairment must be so severe that the plaintiff not only is unable to do his previous 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[.]” Id. § 423(d)(2)(A).

         Pursuant to 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the Commissioner ...