United States District Court, N.D. Florida, Gainesville Division
DAVID W. HEYSEL, JR., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the 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 Deputy Commissioner for Operations
(Commissioner) of the Social Security Administration (SSA)
denying Plaintiff's application for a period of
disability and Disability Income Benefits (DIB) filed
pursuant to Title II of the Social Security Act. After
consideration of the entire record, it is recommended that
the decision of the Commissioner be affirmed.
19, 2013, Plaintiff, David W. Heysel, Jr. (Plaintiff or
claimant), filed an application for DIB, alleging disability
beginning October 1, 2011 (November 24, 2010, as amended at
the hearing, Tr. 35-36), based on degenerative disc disease,
spinal stenosis, cervical and lumbar, cervical spondylosis,
and depression. Tr. 17, 72, 166-67, 191. Plaintiff last
met the insured status requirements for DIB on December 31,
2011. Tr. 17, 70, 219.
application was denied initially on November 23, 2013, and
upon reconsideration on March 11, 2014. Tr. 17, 94-96,
103-07. On June II, 2014, Plaintiff requested a hearing. Tr.
17. On February 3, 2016, the video hearing was held before
Administrative Law Judge (ALJ) M. Hart, who presided over the
hearing from Jacksonville, Florida. Tr. 17, 32. Plaintiff
appeared and testified in Gainesville, Florida. Tr. 17,
32-34, 36-. Plaintiff was represented by Pamela C. Dunmore,
an attorney. Tr. 17, 32, 34, 108-10. C. Kimball Heartsill, an
impartial vocational expert, testified during the hearing.
Tr. 17, 60-68, 248-51 (Resume). During the hearing, Exhibits
1A through 4A, 1B through 15B, 1D through 9D, 1E through 12E,
and 1F through 8F were received into evidence. Tr. 28-31, 36.
On March 1, 2016, the ALJ issued a decision and denied
Plaintiff's application for benefits, concluding that
Plaintiff was not disabled from November 24, 2010, the
amended alleged onset date, through December 31, 2011, the
date last insured. Tr. 17-27.
March 14, 2016, Plaintiff requested review of the ALJ's
decision and an additional 30 days to submit objections and
exceptions, if any. Tr. 12-13. On March 23, 2016, the request
for more time was granted. Tr. 5. No. additional information
was provided to the Appeals Council and on April 12, 2017,
the Appeals Council denied Plaintiff's request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-4; see 20 C.F.R. §
12, 2017, Plaintiff, by counsel, filed a Complaint with this
Court seeking review of the ALJ's decision. ECF No. 1.
The parties filed memoranda of law, ECF Nos. 18 and 19, which
have been considered.
Findings of the ALJ
made several findings:
1. The claimant last met the insured status requirements of
the Social Security Act on December 31, 2011. Tr. 19.
2. The claimant did not engage in substantial gainful
activity (SGA) during the period from his alleged onset date
of November 24, 2010, the amended alleged onset date, through
his date last insured of December 31, 2011. Id. The
claimant's work after the amended alleged onset date did
not rise to the level of SGA. Id.
3. Through the date last insured (December 31, 2011), the
claimant had the following severe impairments: disorders of
the spine, history of left shoulder AC separation, and
hypertension. Id. The ALJ also found that through
the date last insured, the claimant's history of anemia,
history of vertigo, history of episodic alcohol abuse, and
history of depression represented non-severe impairments as
they did not more than minimally limit the claimant's
ability to perform basic work activities for 12 continuous
months. Tr. 19-20. Regarding the claimant's mental
impairments, the ALJ considered the four broad functional
areas set out in the disability regulations for evaluating
mental disorders in Listing 12.00C known as the
“paragraph B” criteria. Tr. 20. The ALJ
considered the claimant's treatment records with his
primary care physician in 2010 through 2012 and
claimant's hearing testimony regarding his daily
activities from November 24, 2010, through December 31, 2011.
Id. Based on the evidence considered, the ALJ
determined that the claimant had mild restrictions
in activities of daily living, mild difficulties in
maintaining social functioning, mild difficulties in
maintaining concentration, persistence, or pace, and
no periods of decompensation. Tr. 21. The ALJ gave
great weight to the State agency psychological consultants
who opined that the medical evidence of record did not
establish severe mental impairments during the adjudication
period through the date last insured. Id.
4. Through the date last insured, December 31, 2011, the
claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. Tr. 21.
5. The claimant had the residual functional capacity RFC to
perform medium work as defined in 20 CFR 404.1567(c) except
with no more than occasional climbing of ladder[s], ropes,
and scaffolds; no more than occasional stooping; no more than
frequent kneeling, crouching, crawling and climbing of ramps
or stairs; no more than frequent overhead reaching with the
left upper extremity; and no concentrated use of moving
machinery or concentrated exposure to the unprotected
heights. Tr. 21.
6. The vocational expert testified that the claimant's
past work history included sales clerk, light exertion, with
an SVP of 3 and performed at the light level and that he had
performed the job of selling marble countertops. The closest
job in the Dictionary of Occupational Titles (DOT) is sales
representative, home furnishings, light exertion with an SVP
of 5 (skilled), also performed at the light level. Tr. 60-62;
see infra at 6, n.5. The ALJ adopted this testimony
at step four of the sequential evaluation process. Tr. 21.
7. The claimant was 60 years old, which is defined as an
individual of advanced age, on the date last insured
(December 31, 2011). The claimant subsequently changed age
category to closely approaching the age of retirement. Tr.
8. 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.
9. Through the date last insured (December 31, 2011), if the
claimant had the RFC to perform the full range of medium
work, a finding of ‘not disabled' would be directed
by Medical-Vocational Rules 203.15 and Rule
203.07. Tr. 26. The ALJ determined, however, that
the claimant's ability to perform all or substantially
all the requirements of this level work (medium, unskilled)
has been impeded by additional limitations, and, as a result,
he asked the vocational expert whether representative jobs
exist in the national economy for an individual with the
claimant's age, education, work experience, and RFC. The
vocational expert testified that such an individual could
perform the representative occupations such as hand packager,
store laborer, and dining room attendant, each with a medium
exertion, unskilled, and an SVP of 2. Id.; Tr. 64-65. The
vocational expert testified that his testimony was consistent
with the DOT “[w]ith the exception of the overhead
reaching, which the DOT assumes overhead reaching in all --
it assumes reaching in all directions in the DOT and
COJ. And also with the exception of the employer
tolerances with regards to off task behavior, absenteeisms
and breaks.” Tr. 66-67.
10. The claimant has not been under a disability, as defined
in the Social Security Act, at any time from November 24,
2010, the amended alleged onset date, through December 31,
2011, the date last insured. Tr. 27.
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).
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 he is under a
disability prior to the expiration of his 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. §
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. Part 404,
4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
5. Do 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 ...