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Thomas v. Berryhill

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

April 13, 2018

MARY E. THOMAS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is 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 affirmed.

         I. Procedural History

         On 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, 240.[1] Plaintiff last met the insured status requirements for DIB on December 31, 2018.[2] Tr. 10, 12; but see Tr. 236, 275 (Dec. 31, 2017).

         Plaintiff's 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).

         On 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. § 404.981.

         On 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.

         II. Findings of the ALJ

         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. 12.
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 satisfied. Id.
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. Id.
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[3] 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.[4] 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.

         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 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) (citations omitted).[5]

         “In 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).[6]

         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 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).

         The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)(4)(i)-(v).

         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. Part 404, Subpart P?

         4. Does the individual have the RFC to perform work despite limitations and are there any impairments which prevent past relevant work?

         5. Do the individual's impairments prevent other work?

         A 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).

         Opinions 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 claimant's RFC.

         A 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.

         Although 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).

         Plaintiff 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. 2003).

         IV. Legal Analysis

         Substantial evidence supports the ALJ's determination that Plaintiff is not disabled.


         Plaintiff 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.[7] ECF No. 14 at 3.


         The ALJ 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.”[8] 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. ...

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