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Leitman v. Berryhill

United States District Court, M.D. Florida, Ft. Myers Division

May 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS CAUSE is before the undersigned on Plaintiff's appeal of an administrative decision denying her applications for a Period of Disability, Disability Insurance Benefits, Child Disability Benefits, and Supplemental Security Income. In a decision dated July 1, 2016, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a disability, within the meaning of the Social Security Act, from June 1, 2010, the alleged disability onset date, through the date of decision. (Tr. 10-25.) Having considered the parties' memoranda and being otherwise fully advised, the undersigned respectfully RECOMMENDS that the Commissioner's decision be REVERSED and REMANDED for further administrative proceedings.

         I. Issues on Appeal

         Plaintiff raises the following issues on appeal:

1. Whether the Administrative Law Judge (“ALJ”) erred in evaluating Plaintiff's RFC and listing 12.04, given that the ALJ states both that Plaintiff experienced two or three episodes of decompensation which have been of extended duration and that the record is devoid of evidence of episodes of decompensation, he did not reference opinions of treating physician Dr. Brenda Keefer in assessing whether Plaintiff met listing 12.04, and in assessing Plaintiff's residual functional capacity (“RFC”) he failed to provide specific reasons for providing limited weight to Dr. Keefer's opinions.
2. Whether the ALJ erred in failing to reflect limitations found by consulting examiner Dr. Paula Bowman and State agency psychological consultants Corine Samwel, Ph.D., and Mike Dow, Ph.D., given that Dr. Bowman, to whom the ALJ gave great weight, found the results of her examination consistent with psychiatric difficulties which may significantly interfere with Plaintiff's ability to function on a daily basis and Dr. Samwel and Dr. Dow, to whom the ALJ gave substantial weight, limited Plaintiff to simple work but the ALJ did not include that limitation in the RFC.
3. Whether the ALJ erred in failing to find Plaintiff unable to maintain regular and continuing work given that her accommodating part-time employer reported extensive absences, treating physician Dr. Ramiah Krisnan opined Plaintiff would be off-task 20% to 30% of the time and would be absent from work 3 days per month, and Dr. Keefer opined Plaintiff had extreme limitations in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and marked limitations in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.
4. Whether the ALJ issued a decision unsupported by substantial evidence given that one of the jobs cited by the vocational expert (“VE”) was not limited to routine and repetitive tasks and required the ability to handle several variables and the job numbers cited by the VE were disproportionate to the number of jobs that the U.S. Department of Labor stated were available within broader Occupational Employment Survey (“OES”) groups that contained many more job titles most of which exceeded Plaintiff's RFC.

(Doc. 23 at 1-2.)

         The undersigned recommends that the ALJ reversibly erred regarding the first two issues raised. The undersigned further recommends that the Court need not address the third and fourth issues because the Commissioner's analysis may change on remand.

         II. Standard of Review

         As the Eleventh Circuit has stated:

In Social Security appeals, we must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].

Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). “With respect to the Commissioner's legal conclusions, however, our review is de novo.” Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

         III. The ALJ's Decision

         At step two of the sequential evaluation process, the ALJ found that Plaintiff had the severe impairments of “asthma, obesity, bipolar disorder, anxiety disorder, attention deficit disorder, and obsessive-compulsive disorder.”[2] (Tr. 15.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listing. (Tr. 15-19.) Prior to step four, the ALJ found that Plaintiff had the RFC:

[T]o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can only occasionally climb stairs, balance, stoop, kneel, crouch and crawl, cannot climb ladders and similar devices; cannot work in hazardous environments; cannot work in temperature extremes; cannot work in exposure to excessive humidity; cannot work in high concentrations of dust, fumes, gases and other pulmonary irritants; can do routine and repetitive tasks only; and cannot do tasks requiring public contact or more than occasional interactions with co-workers.

(Tr. 19.) At step four, the ALJ found that Plaintiff was unable to perform any of her past relevant work. (Tr. 23.) However, at step five, the ALJ found that considering Plaintiff's age (19 on the alleged disability onset date), education, work experience, and RFC, jobs existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 24-25.) Therefore, Plaintiff was not disabled. (Tr. 25.)

         IV. ...

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