United States District Court, N.D. Florida, Tallahassee Division
ERIC L. WASHINGTON, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of the Social Security Administration,  Defendant.
MEMORANDUM OPINION AND ORDER
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
Social Security case was referred to the undersigned upon
consent of the parties by United States District Robert L.
Hinkle. ECF Nos. 7, 9. 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 denying Plaintiff's
application for a period of disability and Disability
Insurance Benefits pursuant to Title II of the Social
Security Act and Supplemental Security Income pursuant to
Title XVI of the Social Security Act. See ECF No. 1.
After careful consideration of the record, the decision of
the Commissioner is affirmed.
Procedural History and Facts
October 29, 2012, Plaintiff filed an application with the
Social Security Administration for a period of disability and
Disability Insurance Benefits (DIB) pursuant to Title II of
the Social Security Act and Supplemental Security Income
(SSI) pursuant to Title XVI of the Social Security Act. The
applications alleged disability beginning October 15, 2010,
based on alleged nerve damage in his right arm and recurrent
infections in his left arm. Tr. 326-36. That alleged
onset date was later amended to September 30, 2014. Tr. 90.
Plaintiff's applications were denied initially and on
reconsideration. Tr. 112, 123.
hearing was commenced before Administrative Law Judge (ALJ)
Marni R. McCaghren on February 6, 2014, but was continued.
Tr. 46-54. The hearing was recommenced on August 27, 2014,
Tr. 55-86, and resulted in a decision on November 17, 2014,
denying disability insurance benefits and supplemental
security income. Tr. 137-44.
April 29, 2016, the Appeals Council vacated the decision and
remanded the case to the ALJ to consider Plaintiff's
examination findings that indicate greater manipulative
limitations than those found in the residual functional
capacity determination of the ALJ. Tr. 150. On remand, a
hearing was held before ALJ Marni R. McCaghren on October 19,
2016. Tr. 87-108. A decision was rendered December 22, 2016,
denying DIB and SSI, Tr. 30-45, and the Appeals Council
denied review on June 29, 2017. Tr. 1-7.
on August 28, 2017, Plaintiff, appearing through counsel,
filed a complaint for judicial review pursuant to 42 U.S.C.
§§ 1381, et seq., and 42 U.S.C. §
405(g). See ECF No. 1. Respondent filed an answer on
November 7, 2017, ECF No. 10, and both parties filed
memoranda in support of their positions. ECF Nos. 15, 16.
appeared at the hearing, with Byron Lassiter, his counsel.
Independent vocational expert Eric Anderson also
appeared. Tr. 87-108. At the beginning of the
hearing, Plaintiff's counsel advised the ALJ that
Plaintiff had developed problems with his legs and swelling
in his knee, as well as problems with his left elbow. Tr. 90.
The alleged onset date was amended to September 30, 2014,
with the notation that Plaintiff was claiming steady
age 39 on the date of the hearing, testified that he has a
ninth-grade education, has not received a GED, and is
right-handed. Tr. 92. He lives at his mother's house and
has not worked since September 2014. Tr. 92-93. His past work
included stripping and waxing floors, construction, general
labor, changing tires, and some cooking jobs. He also worked
unloading heavy stock, driving heavy equipment, and delivery
from 2011-2012. Tr. 93-94.
testified that he cannot work because he has knee and elbow
pain, and nerve damage in his right hand that prohibits his
use of it even for tasks of daily living. Tr. 96-97. The
nerve damage causes numbness, burning, stinging, and
throbbing. Tr. 97. He testified that in 2014, he was able to
open a door lever and open his car door with his right hand,
but he can no longer do those things. Tr. 97-98. He can push
with his right hand, but not grasp. Tr. 98. He has pain in
his left elbow and his fingers cramp up a lot, with
deterioration starting in his thumb area. Tr. 99. He
testified he has arthritis in his knees, causing him
inability to stand for a long time or walk more than 20 or 30
minutes. Id. He takes pain medication but it makes
him tired. Tr. 100.
typical day involves him getting up around 9 or 9:30 a.m.,
taking pain medications, having a hot shower, and walking for
20 or 30 minutes. Id. He tries to elevate his knee
for a few hours. He is not involved in church or any
community service work. Id. His mother helps him
with dressing and cooking. Tr. 96. He cannot open bottles or
cans. Tr. 97. Plaintiff testified on questioning that he had
not been advised to do any physical therapy and would need to
know the outcome of the disability hearing before that issue
was decided, due possibly to insurance issues. Tr. 106.
Anderson, impartial vocational expert, testified that
Plaintiff's past work falls in the category of stock
clerk, DOT code 222.387-058, heavy, semi-skilled, SVP of
4; janitor, DOT code 381.687-018, medium, unskilled,
SVP of 2; short order cook, DOT code 313.374-014,
light, semi-skilled, SVP of 3; construction worker,
DOT code 869.664-014, heavy, semiskilled, SVP of 4; and
tire changer, DOT code 915.684-010, heavy,
semiskilled, SVP of 3. Tr. 101.
posed a hypothetical question to the vocational expert,
asking him to assume an individual of the same age,
education, and work experience as Plaintiff, who was limited
to: lifting and carrying 20 pounds occasionally and 10 pounds
frequently; could stand or walk for six hours per eight-hour
workday and sit for six hours with customary breaks; should
not perform pushing and pulling or arm, leg, or foot
controls; should not climb ladders, ropes, scaffolds, or
stairs; should not crouch, kneel, or crawl; could perform no
handling with the right-dominant hand, no feeling, or
fingering except for occasional use of the thumb; and should
avoid operation of vibratory equipment. Tr. 102. The
vocational expert was asked if this individual would be
capable of Plaintiff's past work, to which the vocational
expert answered that he would not. Tr. 102.
asked if there were other jobs that the individual could do,
the vocational expert testified there were “[v]ery few,
” but the individual could perform the representative
jobs of surveillance system monitor, DOT code
379.367-010, sedentary, unskilled, SVP of 2, for which there
are 114, 000 jobs in the national economy; information
clerk, DOT code 237.367-022, sedentary, SVP of 2, for
which there are 110, 000 jobs in the national
economy; and bakery worker, DOT code
524.687-022, light, unskilled, SVP of 2, for which there are
130, 000 jobs in the national economy. Tr. 103. He testified
that the job of information clerk does not typically require
computer or keyboard use, but was more a matter of providing
information on where to go. Tr. 105. He said the job of
surveillance system monitor would not require more than
occasional bilateral manual dexterity. Tr. 106.
posed a second hypothetical with the same restrictions as
previously stated with the additional limitations of deficits
in pace due to need to use the non-dominant hand, and the
preclusion of writing or fine manipulation. Id. The
vocational expert testified that this individual could still
perform the listed occupations. Id.
third hypothetical, the ALJ added the limitations of lifting
and carrying ten pounds only occasionally, standing and
walking only two hours per workday, and sitting for six hours
with customary breaks. Tr. 104. The vocational expert
testified that such an individual would still be capable of
performing the listed sedentary jobs. Id. The
vocational expert added the representative job of
call-out operator, DOT code 237.367-014, sedentary,
unskilled, SVP of 2, for which there are 62, 000 jobs in the
national economy. Id. The job of call-out operator
might have a computer component requiring occasional
bilateral use of hands. Tr. 106.
posed a fourth and final hypothetical in which the
above-described individual would be off task, or work at an
unproductive pace, frequently throughout the day.
Id. The vocational expert testified that there would
be no work for such an individual in the national economy.
Id. The vocational expert testified that his
testimony was consistent with the DOT, but explained that his
testimony regarding the dominant hand/non-dominant hand and
off-task behavior was based on his education, training, and
experience in vocational rehabilitation over the past 28
years. Tr. 105.
The Decision of the Administrative Law Judge
decision issued on December 22, 2016, the ALJ made several
findings pertinent to this review. Tr.32-39. The ALJ found
that Plaintiff met the insured status requirements of the
Social Security Act through September 30, 2014. Tr. 33. He
was 33 years old, defined as a younger individual age 18-44,
on the alleged disability onset date. Tr. 37. Plaintiff has a
limited education and is able to communicate in English.
found Plaintiff did not engage in substantial gainful
activity during the period from his alleged amended onset
date of September 30, 2014. Tr. 33. The ALJ found
that Plaintiff had the following severe impairments:
degenerative changes of the left elbow with recurrent elbow
pain, swelling, and infection; right upper extremity muscle
wasting and finger contractions with “Hand of
Benedict”; and arthroplasty, polyneuropathy,
cervicalgia, and cervical spine spondylosis. Tr. 33. Based on
his severe impairments documented by the medical evidence and
the evidence presented at the hearing, the ALJ concluded that
Plaintiff cannot perform his past work. Tr. 37.
found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. Id. The ALJ found, in
pertinent part, that the severe impairment of Plaintiff's
elbow does not meet the requirements of gross anatomical
deformity and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion, and findings
on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis, resulting in
inability to perform fine and gross movements effectively, as
required by Listing 1.02B. Tr. 33. The ALJ found that the
record did not indicate that Plaintiff has an extreme loss of
function, that he has good use of his non-dominant hand, and
can perform hygiene independently and can drive. Tr. 34.
Plaintiff's right upper extremity impairment, the ALJ
found that Plaintiff's right hand and arm impairment does
not meet the requirements of Listing 1.05 in that Plaintiff
has had no amputation and retains the limited use of the
right upper extremity. Id. The ALJ found that
Plaintiff's peripheral neuropathy/arthropathy does not
meet Medical Listing 11.14 because it does not cause
disorganization of motor function as required by Medical
Listing 11.04B. Id. As for Plaintiff's severe
impairment of cervical degenerative disc disease and related
spinal problems, Listing 1.04 requires, in pertinent part, a
disorder of the spine resulting in compromise of the nerve
root or the spinal cord with evidence of nerve root
compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss. The ALJ found that the
record did not support these findings. Tr. 34.
determining Plaintiff's residual functional capacity
(RFC),  the ALJ found that Plaintiff has the
capacity to perform a reduced range of sedentary work in that
he can lift and carry up to 10 pounds occasionally. He can
stand/walk for up to two hours in an eight-hour workday and
sit for up to six hours in an eight-hour day. Tr. 34. The ALJ
found that Plaintiff should not perform pushing or pulling of
arm, leg, or foot controls; cannot climb ladders, ropes,
scaffolds, or stairs. He should not crouch, kneel, or crawl;
and he cannot handle, feel, or finger with the right dominant
hand except he can occasionally use his right thumb. The ALJ
found as part of the RFC that Plaintiff can only occasionally
write or perform fine manipulation with his left hand, but
can constantly perform handling, grasping, and feeling with
his left hand; and he should not operate handheld vibratory
reaching this RFC determination, the ALJ concluded that
although Plaintiff's medically determinable impairments
could reasonably be expected to cause “some of the
alleged symptoms, ” Plaintiff's statements
concerning the intensity, persistence, and limited effects of
the symptoms are not entirely consistent with medical
evidence and other evidence in the record. Tr. 35. The ALJ
cited Plaintiff's claims that he cannot work due to knee
and elbow pain and problems in his right hand, all requiring
him to take medication daily. Id. The ALJ referred
to testimony from the earlier hearing that he could not write
with his right hand and could not grasp, make a fist, pick up
things, or open doors with that hand. He testified at that
hearing that he had little strength in his left elbow.
Id. The ALJ also cited Plaintiff's more recent
testimony that he could not stand for long periods due to
knee pain and could only walk for 20 to 30 minutes.
Plaintiff's left elbow symptoms, the ALJ recognized that
medical records documented degenerative changes in his elbow
and that he has required debridement and irrigation for left
elbow cellulitis. Id. Radiographic imaging of the
elbow revealed extensive soft tissue swelling that suggested
calcific olecranon bursitis or possibly gout. Tr. 36 (citing
records at Tr. 447, 444). Imaging also revealed possible
multiple soft tissue abscess use and/or cellulitis.
Id. The ALJ concluded that even with the severe
impairments of his left elbow, objective findings of