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Carey v. Berryhill

United States District Court, N.D. Florida, Panama City Division

June 13, 2018

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



         This case has been referred to the undersigned magistrate judge for disposition pursuant to the authority of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, based on the parties' consent to magistrate judge jurisdiction (see ECF Nos. 11, 12). It is now before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff's application for disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401-34 (for disabled widow's benefits), and for supplemental security income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-83.

         Upon review of the record before this court, it is the opinion of the undersigned that the findings of fact and determinations of the Commissioner are supported by substantial evidence; thus, the decision of the Commissioner should be affirmed.


         Plaintiff filed her application for SSI on November 5, 2013, and she filed her application for DIB on January 28, 2014 (tr. 21).[1] In each application she alleged disability beginning January 28, 2011 (id.). Her applications were denied initially and on reconsideration, and thereafter she requested a hearing before an administrative law judge (“ALJ”). A hearing was held on February 23, 2016, and on March 30, 2016, the ALJ issued a decision in which he found Plaintiff “not disabled, ” as defined under the Act, at any time through the date of his decision (tr. 21-34). The Appeals Council subsequently denied Plaintiff's request for review. Thus, the decision of the ALJ stands as the final decision of the Commissioner, subject to review in this court. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This appeal followed.


         In denying Plaintiff's claims, the ALJ made the following relevant findings (see tr. 21-34):

(1) Plaintiff is the unmarried widow of a deceased insured worker, who has attained the age of 50; her prescribed period began on January 24, 2008, the date the wage earner died, and it ended on January 31, 2015[2];
(2) Plaintiff has not engaged in substantial gainful activity since January 28, 2011, the alleged onset date;
(3) Plaintiff has the following severe impairments: bulging cervical discs without cord impingement, left rotator cuff syndrome, fibromyalgia, hypertension, gastroesophageal reflux disease (“GERD”), and palpitations;
(4) Plaintiff has no 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;
(5) Plaintiff has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with frequent use of her hands for simple grasping and occasional use of her hands/upper extremities for pushing/pulling of arm controls; continuous use of her fingers for fine manipulation; occasional use of her feet for pushing/pulling of leg controls; frequent stooping; occasional crouching, kneeling, crawling; and no climbing ladders, ropes, or scaffolds. She can occasionally climb ramps, stairs, and balance; occasionally reach overhead with the left arm; frequently reach overhead with the right arm; perform occasional work around unprotected heights and moving machinery; and can have limited exposure to temperature extremes, as well as drive automotive equipment that requires the use of a clutch. She experiences pain, which will occasionally interfere with her concentration, persistence, and pace but will not require abandonment of her work or workstation. This is not a continuous concept and occurs up to 20% of the time;
(6) Plaintiff can return to her past relevant work as a bookkeeper (DOT No. 210.382-014) (sedentary/skilled);
(7) Because Plaintiff can return to her past work, she was not disabled, as defined in the Act, between January 28, 2011 (alleged onset), and March 30, 2016 (date of the ALJ's decision).[3]


         Review of the Commissioner's final decision is limited to determining whether the decision is supported by substantial evidence from the record and was a result of the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when convinced that it is not supported by substantial evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination that is supported by substantial evidence may be meaningless . . . if it is coupled with or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied, the Commissioner's decision will not be disturbed if in light of the record as a whole the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g); Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates against the Commissioner's decision, the decision must be affirmed if supported by substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

         The Act defines a disability as 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). To qualify as a disability the physical or mental impairment must be so severe that the claimant is not only unable to do her previous work, “but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R. § 404.1520(a)-(g), [4] the Commissioner analyzes a disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not disabled.
2. If the claimant is not performing substantial gainful activity, her impairments must be severe before she can be found disabled.
3. If the claimant is not performing substantial gainful activity and she has severe impairments that have lasted or are expected to last for a continuous period of at least twelve months, and if her impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4. If the claimant's impairments do not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairments prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her RFC and vocational factors, she is not disabled.

         The claimant bears the burden of establishing a severe impairment that keeps her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment, the burden shifts to the Commissioner at step five to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must then prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).


         A. Plaintiff's Personal History

         Plaintiff appeared by video for a hearing before an ALJ on February 23, 2016. She was represented by counsel (see, e.g., tr. 42). At the outset of the hearing her counsel advised the ALJ that he had reviewed the exhibits in Plaintiff's case and had no objection to them (tr. 47). He also advised the ALJ that Plaintiff's “biggest problem, ” in terms of being disabled, was her “chronic fatigue, fibromyalgia, and just chronic pain” (tr. 47).

         Plaintiff then testified, first advising the ALJ that she was fifty-five years of age, having been born in 1960, and that she had a high school equivalent education and “some college” (tr. 48-50). She noted she had been married to Daniel Carey, who died in January 2008, and that she had not remarried (tr. 48-49). She stated she had previously worked as a bookkeeper and in other similar, sedentary jobs (see tr. 50-53, 65). When asked if she had worked ...

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