United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
a Social Security case referred to the undersigned United
States 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 Title II application for period of disability
and Disability Insurance Benefits. After careful
consideration of the entire record, it is respectfully
recommended that the decision of the Commissioner be
Procedural History and Facts
was previously granted disability insurance benefits on June
29, 2011, with entitlement to disability commencing on March
24, 2011. Tr. 73, 75-76. His benefits were based on military
combat injuries including perineal area, right thigh and calf
injuries, no motor function in right foot, left leg below the
knee amputation, leg and ankle injuries, major tissue damage,
kidney damage, stage II pressure ulcer below sacrum, broken
right arm, back injury, fractured hip/pelvis, hypogonadism,
and nerve damage requiring use of a colostomy bag and urinary
catheter. Tr. 76.
to a disability review in which it was determined that
Plaintiff had achieved medical improvement, Plaintiff was
found not disabled as of April 1, 2015. Tr. 78-79, 82, 86.
That determination was upheld by a State agency Disability
Hearing Officer. Tr. 102-06. Plaintiff requested a hearing,
which was held by videoconference in Jacksonville, Florida,
on August 23, 2016. Tr. 33-68. Plaintiff appeared pro se and
testified in Gainesville, Florida, after waiving his right to
representation at the hearing. Tr. 37-38, 148. Impartial
vocational expert Charles K. Heartsill also appeared and
testified at the hearing. Tr. 59-65.
decision was issued on January 19, 2017, finding Plaintiff
was no longer disabled, Tr. 9-19, and the Appeals Council
denied review. Tr. 1-5. Accordingly, on July 14, 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 September 22, 2017,
ECF No. 8, and both parties filed memoranda in support of
their positions. ECF Nos. 17, 18.
hearing held August 23, 2016, Plaintiff, age 31 at the time
of the hearing, testified that he graduated from high school
and served in the Marine Corps as an infantryman. Tr. 39.
While on active duty in Afghanistan, he was injured by an
Improvised Explosive Device (IED). Tr. 40. He was found to be
disabled in 2011 but that disability was determined to have
ended in April 2015. Tr. 41.
testified he is still being treated medically by the Veterans
Administration (VA) in Tampa, where he received his
prosthesis for his amputated left leg. Id. He
testified he visits the VA hospital in Tampa about every
other month, but more frequently if he is having difficulty
with his prosthesis. Tr. 43. His regular physician is Dr.
Samantha Mendelson of the VA's Spinal Cord Institute. Tr.
48. As of the date of the hearing, his most recent visit was
in June 2016 to be treated for an ongoing pressure sore on
his buttocks. Tr. 42. He testified that he can drive a car
but can only drive for about an hour due to the pressure
sore. Tr. 43.
testified that he was currently waiting for completion of a
new prosthesis because the one he had was causing pain due to
an ill-fitting socket. Tr. 44. He said he has had about
twelve different prostheses due to changes in his leg. Tr.
48. He has been unable to wear his current prosthesis for
about two and a half months and has been using a wheelchair,
although he expects to be fitted for his new prosthesis in
less than a month. Tr. 44. Plaintiff testified he had been
doing bicycling on a hand bike, but had to stop due to the
pressure sore. Tr. 45. He was hospitalized in January 2016
due to a nerve flare-up in his back arising from a bladder
infection, which comes and goes. Tr. 46-47. He takes the
occasional antibiotic, when necessary, and takes Tylenol. Tr.
lives with his wife and two young sons in a
handicap-accessible home. Tr. 49. During the day, he tries to
cook occasionally and help with the dishes. He cannot do
laundry or vacuuming, which his wife does. Tr. 50. He helps
his children with homework and supervises their chores.
Id. He said he spends the majority of his time-more
than eight hours a day-in his wheelchair, which has a special
cushion to relieve pressure from sitting, although he also
tries to move around to change the pressure points once an
hour. Tr. 51-53. He can wear his prosthesis when he goes to
the grocery store but cannot walk or stand for very
long-maybe 15 minutes. Id. For a more extended
shopping trip, he will use the handicap cart. Tr. 51.
testified he cannot lift much weight with his right hand
because a portion of it and his forearm is missing. The bones
in his right forearm are fused so he cannot turn his wrist.
Tr. 54. He can open a door with his right hand if it has a
lever handle, but not if it has a round handle. Id.
He can hold possibly fifteen pounds with his right hand. Tr.
53. His left hand is fine and he uses it to roll his
wheelchair and do other things, even though he is
right-handed. Tr. 54. He has learned to eat with his left
hand, although his wife usually helps him if something needs
to be cut up. Id. He can dress himself, but his wife
helps him to bathe and take care of his colostomy bag and his
catheter. Tr. 55. He tries to care for the family dog. Tr.
57. His wife began a teaching job so he is home alone for
much of the day, but he will call his mother to come over if
he needs help. Id.
testified he is no longer being given physical therapy
through the VA. Tr. 49. He has not sought any retraining
through the VA or the Florida Division of Vocational
Rehabilitation. Tr. 55. He participates in the Wounded
Warrior Project when he can and tries to participate in his
children's functions, although his nerve pain sometimes
makes that difficult. Tr. 56.
vocational expert, Charles K. Heartsill, testified that he
would be relying on the Dictionary of Occupational Titles
(DOT) and jobs identified by the United States Department of
Labor's Bureau of Labor Statistics, through the
Occupational Employment Survey. Tr. 60. The vocational expert
said he will also rely on his past experience in studying how
jobs are being performed in terms of mental and physical
demands. Tr. 61. He testified that Plaintiff's past work
in the Marine Corps fell under the job category of infantry
weapons crew member, DOT code 378.684-026, very heavy, SVP of
posed a hypothetical question to the vocational expert,
asking him to assume a younger individual of 31 years of age
with a high school education and past semi-skilled work, who
can sit for six hours a day, stand and walk for four hours,
lift with his dominant right hand ten pounds occasionally and
five pounds or less more frequently, who can lift twenty
pounds with his left hand and ten pounds or less more
frequently. Tr. 62. This individual can occasionally push or
pull arm or hand controls with his right hand and frequently
with his left, push or pull leg controls occasionally with
both feet, cannot climb ramps, stairs, ropes, ladders, or
scaffolding. He can balance, bend, stoop, etc., on an
occasional basis. Tr. 63. The individual cannot work at
unprotected heights, around dangerous moving machinery, or in
proximity to concentrated industrial vibration. The
hypothetical individual has no mental impairments that reduce
his occupational work base. Id. The vocational
expert confirmed that such an individual could not do the
past work of Plaintiff, but there would be other light and
sedentary work that he could perform. Id.
vocational expert testified that such an individual could
perform the following representative jobs: surveillance
system monitor, DOT code 379.367-010, sedentary, SVP of 2, of
which there are 113, 020 jobs nationally and 2, 884 jobs in
the region (Florida); call-out operator, DOT code
237.367-014, sedentary, SVP of 2, of which there are 11, 842
jobs nationally and 834 in the region; and ticket seller, DOT
code 211.467-030, light, SVP 2, of which there are 35, 258
jobs nationally and 2, 253 in the region. Tr. 63-64. He
testified that, in his opinion, ticket seller is a job that
can be performed with a sit/stand option and can be
sedentary, which differs from the way the job is defined in
the DOT. Tr. 64.
second hypothetical, the ALJ revised the limitation of
standing and walking to two hours a day. Id. The
vocational expert testified that the person could still
perform the jobs which he just described. Id. He
testified that he had taken into account, in reaching his
opinions, the manipulative issues with the individual's
right hand, and that the jobs described only require
occasional reaching, handling, fingering, and feeling and
focus more on oral skills. Tr. 65.
response to the testimony of the vocational expert, Plaintiff
testified that the expert did not address the situation that
would occur when Plaintiff has nerve flare-ups that prevent
him from working for three straight days or when he has
problems with his colostomy bag or his catheter bag and he
gets soiled while at work. He stated, “I mean those are
all real world situations that are - - can't really be
hypothesized. And that's stuff that I deal with on a
daily basis.” Tr. 66-67. The ALJ noted that these
situations are not reflected in the file but he would see
what more recent records from the Tampa VA might show. Tr.
The Decision of the Administrative Law Judge
January 19, 2017, the ALJ issued a decision finding that
Plaintiff's disability ended on April 1, 2015. Tr. 9-19.
The ALJ noted that he must follow an eight-step evaluation
process to answer the question of whether Plaintiff's
disability ended under section 223(f) of the Social Security
Act. The ALJ made several findings pertinent to this review.
Tr. 11-19. Plaintiff is a younger individual age 18-44 on
April 1, 2015, the date that the Commissioner determined
Plaintiff's disability ended. Tr. 18. The ALJ found that
Plaintiff has not engaged in any substantial gainful activity
since the alleged onset date through the date of the
decision. Tr. 11. Plaintiff has at least a high school
education and is able to communicate in English. Tr. 18.
most recent favorable medical decision finding that Plaintiff
was disabled is the determination dated June 29, 2011, which
is known as the “Comparison Point Decision” or
CPD. Tr. 11. The ALJ reported that, at the time of the CPD,
Plaintiff had the following medically determinable
impairments: history of multiple traumatic injuries including
left leg amputation below the knee, broken right arm, back
injury, fractured hip/pelvis, and kidney damage. Id.
Since April 1, 2015, Plaintiff had the following medically
determinable impairments: a history of hypogonadism, history
of obesity, history of left below the knee amputation,
history of a neurogenic bladder and bowel, and a history of
lumbosacral plexopathy. Id.
found that since April 1, 2015, Plaintiff has not had an
impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. Tr. 11. In reaching
this conclusion, the ALJ found that the medical records do
not demonstrate that all additional requirements set forth by
any of the pertinent paragraphs of section 1 (musculoskeletal
system), section 5 (digestive system), section 9 (endocrine
system), and section 11 (neurological), all of which were
considered by the ALJ. Id. The ALJ concluded that
Plaintiff had medical improvement, which is related to the
ability to work, because by April 1, 2015, Plaintiff's
CPD impairments no longer met or medically equaled Listing
1.05B, the listing that was met at the time of the CPD. Tr.
found that Plaintiff's medical improvement occurred on
April 1, 2015, as shown by medical evidence of marked
improvement in ability to ambulate on the left prosthetic
leg, cessation of prescription medication for pain, and an
active lifestyle. The ALJ cited the fact that none of the
treating physicians placed any substantial functional
limitations on Plaintiff. Id.
recognized that since April 1, 2015, Plaintiff continues to
have severe impairments or combinations of impairments,
citing hypogonadism, obesity, left below the knee amputation,
neurogenic bladder and bowel, and lumbosacral plexopathy,
which cause more than minimal limitations on Plaintiff's
ability to perform basic work activities. Tr. 12.
The ALJ noted that a cat scan of Plaintiff's lumbar spine
showed prior lumbar fusion and laminectomy defect at ¶
4/L5 level. Tr. 16 (citing records at Tr. 582). Based on the
finding of these severe impairments, the ALJ determined that
Plaintiff cannot perform his past relevant work as an
infantry weapons crew member, Tr. 17, but has the residual
functional capacity (RFC) to perform a range of sedentary
work with the following limitations: sit for a total of six
hours in an eight-hour workday, with reasonable customary
breaks; stand and walk for two hours per day; lift ten pounds
occasionally and five pounds or less more frequently with his
right hand; lift twenty pounds with his left hand and ten
pounds more frequently; perform the pushing and pulling of
arm/hand controls occasionally with right hand and frequently
with the left; occasionally perform pushing and pulling of
foot/pedal controls with both feet; never climb ramps,
stairs, ropes, ladders, or scaffolds; occasionally perform
all other postural activities of balancing, bending,
stooping, crouching, crawling, and kneeling; frequently reach
in all directions with both hands; occasional handling,
fingering, and feeling with the right upper extremity, with
no such manipulative problems with the left hand; no limits
on ability to see, speak, and hear; may not work at
unprotected heights, around dangerous moving machinery, in
proximity to concentrated industrial vibrations; and,
requires a temperature controlled environment. Tr. 12.
making the RFC determination, the ALJ found that
Plaintiff's medically determinable impairments could have
reasonably been expected to produce some of the alleged
symptoms, but concluded that his statements concerning the
intensity, persistence, and limiting effects of these
symptoms are not entirely consistent with the objective
medical and other evidence. In reaching this conclusion, the
ALJ recognized the determination of disability dated June 29,
2011, as the CPD, as it is the most recent favorable medical
determination for Plaintiff's disability. Tr. 14. After
Plaintiff's case was reviewed, a determination was made
that Plaintiff is no longer disabled as of April 2015. The
ALJ noted that ...