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Heysel v. Berryhill

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

April 19, 2018

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, [1] 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 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.

         I. Procedural History

         On July 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.[2] Plaintiff last met the insured status requirements for DIB on December 31, 2011. Tr. 17, 70, 219.

         Plaintiff's 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.

         On 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. § 404.981.

         On June 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.

         II. Findings of the ALJ

         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. 26.[3]
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.[4] 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.[5] 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.

         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).[6]

         “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).

         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 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).

         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?[7]
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. ยง 404.1520(a)(4)(v), (e) & (g). An ALJ may make this determination either by applying the Grids or by obtaining the ...

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