United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE
appeals to this Court from a final decision of the Acting
Commissioner of Social Security (the
“Commissioner”) denying Plaintiff's
application for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) pursuant to Title II and Title XVI,
respectively, of the Social Security Act. (ECF No. 1.) The
Commissioner has answered, (ECF No. 9), and both parties have
filed briefs outlining their respective positions. (ECF Nos.
16, 19.) For the reasons discussed below, it is recommended
that the Commissioner's decision should be affirmed.
protectively filed applications for Title II DIB and Title
XVI SSI benefits, alleging a disability onset date of
November 1, 2009. (R. 82-83, 186-93.) Plaintiff claims she
cannot work due to lower back pain, a problem with her right
leg, sinus problems, diabetes, and high blood pressure. (R.
221.) Her applications were denied initially and upon
reconsideration. (R. 84-85, 114-15.) Following a hearing on
May 25, 2016, an Administrative Law Judge (“ALJ”)
issued a written decision on July 8, 2016, finding Plaintiff
not disabled. (R. 10-47.) The Appeals Council thereafter
denied Plaintiff's request for review. (R. 1-6.)
Plaintiff subsequently appealed the ALJ's decision to
this Court. (ECF No. 1.)
STANDARD OF REVIEW
Commissioner's findings of fact are conclusive if
supported by substantial evidence. See 42 U.S.C.
§ 405(g) (2012). Substantial evidence is more than a
scintilla, i.e., the evidence must do more than merely create
a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982),
Richardson v. Perales, 402 U.S. 389, 401 (1971));
accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991).
the Commissioner's decision is supported by substantial
evidence, the district court will affirm, even if the
reviewer would have reached a contrary result as finder of
fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner's decision.
Edwards, 937 F.2d at 584 n.3; Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The
district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560; accord Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding
that the court must scrutinize the entire record to determine
reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the
court must also consider evidence detracting from evidence on
which the Commissioner relied). However, the district court
will reverse the Commissioner's decision on plenary
review if the decision applies incorrect law, or if the
decision fails to provide the district court with sufficient
reasoning to determine that the Commissioner properly applied
the law. Keeton v. Dep't Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result
in death, or has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(I), 423(d)(1) (2012); 20 C.F.R. §§
404.1505, 416.905 (2015). The impairment must be severe, making
Plaintiff unable to do her previous work, or any other
substantial gainful activity which exists in the national
economy. § 423(d)(2); 20 C.F.R. §§
must follow five steps in evaluating a claim of disability.
20 C.F.R. §§ 404.1520, 416.920. The claimant has
the burden of proving the existence of a disability as
defined by the Social Security Act. Carnes v.
Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). First,
if a claimant is working at a substantial gainful activity,
she is not disabled. §§ 404.1520(b), 416.920(b).
Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her
physical or mental ability to do basic work activities, then
she does not have a severe impairment and is not disabled.
§§ 404.1520(c), 416.920(c). Third, if a
claimant's impairments meet or equal an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is
disabled. §§ 404.1520(d), 416.920(d). Fourth, if a
claimant's impairments do not prevent her from doing past
relevant work, she is not disabled. §§
404.1520(e)-(f), 416.920(e)-(f). Fifth, if a claimant's
impairments (considering her residual functional capacity
(“RFC”), age, education, and past work) prevent
her from doing other work that exists in the national
economy, then she is disabled. §§ 404.1520(g),
burden of proof regarding the plaintiff's inability to
perform past relevant work initially lies with the plaintiff.
Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir.
1987); see also Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). The burden then temporarily shifts to
the Commissioner to demonstrate that “other work”
which the claimant can perform currently exists in the
national economy. Doughty, 245 F.3d at 1278
SUMMARY OF THE RECORD
treated predominantly with Echo Community Health Care in 2012
and 2013. On examination in February 2012, September 2012,
October 2012, January 2013, February 2013, and July 2013,
Plaintiff was cooperative, alert, oriented, and had normal
affect and good eye contact. (R. 326, 329, 332, 335, 337,
August 2013, despite being tearful and sad following the
recent deaths of two friends, Plaintiff was nevertheless
cooperative, alert, oriented, and had normal affect and good
eye contact. (R. 323.) She was also cooperative, alert,
oriented, and had normal affect and good eye contact in
October 2013, but did report some recent back pain after
starting a new job at a café. (R. 319-20.)
five months later, in March 2014, Plaintiff first reported
insomnia, difficulty concentrating, irritability and
moodiness, anxiety, and depression. (R. 372.)
later presented to William E. Benet, Ph.D., Psy.D., for a
consultative psychological evaluation on April 10, 2014. (R.
376-79.) Plaintiff reported severe back pain and depression,
manifested by depressed mood, crying episodes, insomnia,
difficulty concentrating, and social withdrawal. She told Dr.
Benet that she had been unemployed since November 2013 due to
back and leg pain. At some point she also divorced her
ex-husband because he was verbally abusive. Plaintiff
reported not having many friends locally, having just moved
to Florida from Indiana. Her favorite activity was reading
murder mysteries. She also read the Bible.
examination Plaintiff was alert, oriented, friendly, and
cooperative. Eye contact was good and gait and motor activity
were normal. Plaintiff's speech was clear, coherent, and
relevant. Plaintiff was “very articulate, ” and
“had no difficulty understanding and responding to
questions or sustaining conversation.” (R. 378.) Her
thinking was organized and goal directed, without suicidal
thoughts, and perceptions were adequate. Plaintiff's
mood, however, was depressed and her affect congruent.
Attention and concentration varied. Immediate recall was
above average for her age, but delayed recall was poor.
Verbal reasoning was average, as was her general intellectual
ability. Judgment and insight were adequate. Dr. Benet
assessed Plaintiff with mood disorder, not otherwise
specified, and a GAF score of 50-55.
year later, in October 2015, Plaintiff presented to Palms
Medical Group with complaints of anxiety and back pain. (R.
413-17.) She reported having difficulty concentrating, but
also reported that over the last two weeks she was not
bothered at all by trouble concentrating on things, such as
reading or watching television. On examination she appeared
oriented, but anxious and hypomaniac with inappropriate mood
and affect. She was assessed with general anxiety and
psychiatric examination in November 2015 was normal. (R.
409-12.) The doctor switched her medication to Zoloft,
however, because the Paroxetine had caused leg cramps and
February 2016, Plaintiff reported that her anxiety was
“well controlled, ” that she was very pleased
with Zoloft, and that she had not had any panic attacks while
on the Zoloft. (R. 404-407.) Although she continued to report
anxiety, feeling down and depressed, and having difficulty
sleeping, she did not report having problems with
concentration. On examination her memory appeared normal, and
she was oriented with appropriate mood and affect.
April 2014, based on his consultative psychological
evaluation of Plaintiff, Dr. Benet opined that Plaintiff
“should be able to perform work- related mental tasks
involving understanding and memory, social interaction and
adaptation but is likely to have moderate to marked
difficulty in performing tasks involving sustained
concentration and persistence.” (R. 378.) Plaintiff
also “should be capable of managing her
benefits.” (R. 379.) Finally, Dr. Benet opined that
“[s]ignificant improvement in mood may be expected with
psychiatric treatment and supportive psychological counseling
addressing the verbal abuse [Plaintiff] experienced when she
was married.” (Id.)
Work History Evidence
previously worked as a waitress at various restaurants. (R.
253.) Plaintiff also worked as a cashier in 2006, 2009, and
2012. (R. 222, 253.) Specifically, Plaintiff worked as a
cashier at a gas station for six months in 2006 and
approximately four months in 2009. (Id.) In 2006 her
total earnings were $2, 907.66. (R. 209.) Her total earnings
in 2009 were $6, 945.05. (R. 210-11.) ...