United States District Court, N.D. Florida, Gainesville Division
MARY E. THOMAS, 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 Social Security Act
(Act) and an application for a period of disability and
Disability Income Benefits (DIB) filed pursuant to Title II
of the Act. After consideration of the entire record, it is
recommended that the decision of the Commissioner be
January 6 and 16, 2014, Plaintiff, Mary E. Thomas, filed
applications for SSI and a period of disability and DIB,
respectively, alleging disability beginning November 1, 2013,
based on anxiety attacks, high blood pressure, memory loss,
post-traumatic stress syndrome (PTSD), sleep disorder, and
essential hypertension. Tr. 10, 57-58, 200-09, 236,
Plaintiff last met the insured status requirements for DIB on
December 31, 2018. Tr. 10, 12; but see Tr. 236, 275
(Dec. 31, 2017).
applications were denied initially on May 14, 2014, and upon
reconsideration on July 14, 2014. Tr. 10, 119-24, 130-31,
135-39. On August 22, 2014, Plaintiff requested a hearing.
Tr. 10, 142-43. The video hearing was held on May 9, 2016,
before Administrative Law Judge (ALJ) Gregory J. Froehlich,
presiding from Jacksonville, Florida. Tr. 10, 38-56.
Plaintiff testified during the hearing from Gainesville,
Florida. Tr. 41-51. Plaintiff was represented by Adam S.
Neidenberg, an attorney, and Mr. Routon (sp) during the
hearing. Tr. 10, 40, 125-26. Donna P. Mancini, an impartial
vocational expert, testified during the hearing. Tr. 10,
51-55, 289-91 (Resume).
August 18, 2016, the ALJ issued an unfavorable decision and
determined that Plaintiff was not disabled from November 1,
2013, through the date of the ALJ's decision. Tr. 10-22.
On October 15, 2016, Plaintiff's counsel filed a brief,
Tr. 4, 292-96, and on October 17, 2016, Plaintiff requested
review by the Appeals Council. Tr. 4, 197-99. On August 7,
2017, the Appeals Council denied Plaintiff's request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-6; see 20 C.F.R. §
October 5, 2017, Plaintiff, by counsel, filed a Complaint
with this Court seeking review of the decision rendered by
the ALJ. ECF No. 1. The parties filed memoranda of law, ECF
Nos. 14 and 15, which have been considered.
Findings of the ALJ
made several findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2018. Tr. 10, 12.
2. The claimant has not engaged in substantial gainful
activity since November 1, 2013, the alleged onset date. Tr.
3. The claimant has the following severe impairments:
obstructive sleep apnea (OSA), hypertension, anxiety,
obesity, bipolar disorder, post-traumatic stress disorder
(PTSD), and osteoarthritis. Tr. 12. The ALJ noted that
Plaintiff has the impairments consisting of hyperthyroidism,
but “there is no evidence of any significant
complications and/or work-related limitations due to these
conditions documented in the record. Longitudinal notes on
May 7, 2014, indicated that her hyperthyroidism no longer
required medication and was well controlled (Exhibit
7F).” Tr. 13.
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. 13. The ALJ considered Listings 1.02 (major
dysfunction of a joint) and 3.10 (sleep-related breathing
disorder). Id. Regarding the latter issue, the ALJ
considered Plaintiff's obesity pursuant to SSR 02-01p.
Tr. 13-14; see SSR 02-01p, 2002 SSR LEXIS 1 (Sept.
12, 2002); see Tr. 17. The ALJ considered
Plaintiff's mental impairments in light of Listings 12.04
(affective disorders) and 12.06 (anxiety-related). Tr. 14.
Pursuant to the “paragraph B” criteria, the ALJ
determined that Plaintiff had moderate restriction
in activities of daily living, moderate difficulties
in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, and
pace, after noting that Plaintiff “had mild
difficulties.” The ALJ determined that Plaintiff
“has experienced no episodes of
decompensation, which have been of extended duration.”
Id. The ALJ also determined that the
“paragraph C” criteria for Listing 12.04 were not
5. “The claimant has the residual functional capacity
[RFC] to perform medium work as defined in 20 CFR 404.1567(c)
and 416.965(c) that is further limited by occasionally
stooping and no more than frequent handling and fingering
bilaterally, but she can never balance. The claimant should
avoid exposure to hazards including mechanical parts and
unprotected heights. She can perform simple tasks with little
variation that take a short period to learn (up to and
including 30 days). The claimant will be able to deal
adequately with supervisors and changes in a routine work
setting, but she can only have occasional contact with
coworkers and no contact with the public.”
Id.; see infra at 5-6, n.4.
6. The claimant is unable to perform any past relevant work,
including “nursing aide (medium, unskilled) and
residential tech (medium, semi-skilled).” Tr. 20. The
vocational expert, however, classified Plaintiff's past
work as nurse aide/healthcare tech, medium work, semi-skilled
with an SVP of 4. Tr. 51; see Tr. 258 (work history
report). The second position was classified as a residential
care technician, medium work, skilled, with an SVP of 6.
7. The claimant was 56 years old, which is defined as an
individual of advanced age, on the alleged disability onset
date. Tr. 20. The claimant has at least a high school
education and is able to communicate in English. Id.
Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules (the Grids) as a framework supports
a finding that the claimant is not disabled, whether or not
the claimant has transferable job skills. Id.
8. At step five of the sequential evaluation process, the
ALJ, relying on the testimony of a vocational expert,
determined that Plaintiff could perform several
representative jobs including floor waxer, linen
room attendant, laundry worker II, and food
service worker, all considered medium exertion level,
unskilled work, with an SVP of 2. Tr. 21, 52. In response to a
second hypothetical which added that the hypothetical
individual would be off task for 20% of the workday and at
unpredictable intervals, the vocational expert opined that
“[w]ith that degree of off task, Your Honor, it would
preclude all competitive employment.” Tr. 53. The
vocational expert opined that employers' tolerance for
absenteeism is “no more than two absences within a
30-day period.” Id. The vocational expert
advised that there were no conflicts with the DOT, but
clarified that “the DOT does not address industry
standards of absenteeism and off task and I can testify to
those areas as I've worked in the field, met with
employers, discussed with them those issues, and my testimony
is a result of those conversations.” Id.
9. The claimant has not been under a disability, as defined
in the Social Security Act, from November 1, 2013, the date
of the ALJ's decision. Tr. 21.
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 at 1211.
“The Commissioner's factual findings are conclusive
if supported by substantial evidence.” Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
making an initial determination of disability, the examiner
must consider four factors: ‘(1) objective 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 she is under a
disability prior to the expiration of her 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, 1137-38 (1st
Cir. 1988); Cruz Rivera v. Sec'y of Health &
Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
Commissioner analyzes a claim in five steps. 20 C.F.R. §
the individual currently engaged in substantial gainful
the individual have any severe impairments?
the individual have any severe impairments that meet or equal
those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
the individual's impairments prevent other work?
positive finding at step one or a negative finding at step
two results in disapproval of the application for benefits. A
positive finding at step three results in approval of the
application for benefits. At step four, the claimant bears
the burden of establishing a severe impairment that precludes
the performance of past relevant work. Consideration is given
to the assessment of the claimant's RFC and the
claimant's past relevant work. If the claimant can still
do past relevant work, there will be a finding that the
claimant is not disabled. If the claimant carries this
burden, however, the burden shifts to the Commissioner at
step five to establish that despite the claimant's
impairments, the claimant is able to perform other work in
the national economy in light of the claimant's RFC, age,
education, and work experience. Phillips, 357 F.3d
at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th
Cir. 1999); Chester, 792 F.2d at 131; MacGregor
v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20
C.F.R. § 404.1520(a)(4)(v), (e) & (g). An ALJ may
make this determination either by applying the grids or by
obtaining the testimony of a vocational expert.
Phillips, 357 F.3d at 1239-40; see 20
C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner carries
this burden, the claimant must prove that he or she cannot
perform the work suggested by the Commissioner. Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
on some issues, such as whether the claimant is unable to
work, the claimant's RFC, and the application of
vocational factors, “are not medical opinions, . . .
but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that
are dispositive of the case; i.e., that would direct the
determination or decision of disability.” 20 C.F.R.
§ 404.1527(d); see Bell v. Bowen, 796 F.2d
1350, 1353-54 (11th Cir. 1986). “[T]reating source
opinions on issues reserved to the Commissioner are never
entitled to controlling weight or special
significance.” SSR 96-5p, 1996 SSR LEXIS 2, at *6
(1996). Although physician's opinions about what a
claimant can still do or the claimant's restrictions are
relevant evidence, such opinions are not determinative
because the ALJ has responsibility of assessing the
treating physician's opinions that a claimant is unable
to work and necessarily disabled would not be entitled to any
special weight or deference, however. The regulations
expressly exclude such a disability opinion from the
definition of a medical opinion because it is an issue
reserved to the Commissioner and a medical source is not
given “any special significance” with respect to
issues reserved to the Commissioner, such as disability. 20
C.F.R. § 404.1527(d)(1), (3); SSR 96-5p, 1996 SSR LEXIS
2, at *6. In Lewis v Callahan, the court noted
“that we are concerned here with the doctors'
evaluations of [the claimant's] condition and the medical
consequences thereof, not their opinion of the legal
consequences of his condition. Our focus is on the objective
medical findings made by each doctor and their analysis based
on those medical findings.” 125 F.3d at 1440.
not given the same controlling weight or deference as the
opinion of treating physicians, the findings of a State
agency medical consultant regarding the nature and severity
of a claimant's impairments must be treated as expert
opinion at the ALJ and Appeals Council levels of
administrative review. See SSR 96-6p, 1996 SSR LEXIS
3, at *4 (July 2, 1996) (rescinded and replaced by SSR 17-2p
eff. Mar. 27, 2017). The findings of a State agency medical
consultant may provide additional evidence to support the
ALJ's findings. See Jones v. Bowen, 810 F.2d
1001, 1005 (11th Cir. 1986).
bears the burden of proving that she is disabled, and
consequently, is responsible for producing evidence in
support of her claim. See 20 C.F.R. §
404.1512(a); Moore v. Barnhart, 405 F.3d at 1211;
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
evidence supports the ALJ's determination that Plaintiff
is not disabled.
raises two issues for the Court's consideration.
Plaintiff argues the ALJ's decision is not based upon
substantial evidence because the ALJ failed to properly
consider the medical opinion of the consultative examiner,
Robert A. Greenberg, M.D. Plaintiff also argues that the
ALJ's bases for rejecting Plaintiff's limitations
(failure to follow prescribed medical treatment) and mention
of Plaintiff's work activity are not based on substantial
evidence. ECF No. 14 at 3.
began the RFC determination with a brief discussion of
Plaintiff's hearing testimony and an Adult Function
Report completed on January 26, 2014, which describes
Plaintiff's daily activities. Tr. 15-16; see Tr.
347-54. The ALJ noted that Plaintiff's “report of
disabling symptoms is rendered unpersuasive because they are
not consistent with the treatment records or the
claimant's reported activities.” Tr. 16. The ALJ
refers to Plaintiff's work activity in 2014 after the
alleged onset date, but notes that the earnings “did
not rise to the level of substantial gainful activity.”
Id. (citations omitted). The ALJ also stated:
“Although that work activity did not constitute
substantial gainful activity, it does indicate that the
claimant's daily activities have, at least at times, been
somewhat greater than the claimant has generally
reported.” Id. ...