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Johnson v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

June 28, 2018

LARRY B. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.



         This is a Social Security case referred to the undersigned 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 (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application for Supplemental Security Income (SSI) filed pursuant to Title XVI of Social Security Act. After consideration of the entire record, it is recommended that the decision of the Commissioner be affirmed.

         I. Procedural History

         On August 6, 2013, Plaintiff, Larry B. Johnson, filed an application for SSI, alleging disability beginning January 1, 1995, based on paranoid schizophrenia, depression, suicidal attempts, very little reading and writing, and a disc removed from his neck. Tr. 15, 87, 229.[1] Plaintiff's application was denied initially on May 1, 2014, and upon reconsideration on December 5, 2014. Tr. 15, 87, 111-22. On January 21, 2015, Plaintiff requested a hearing. Tr. 15. The video hearing was held on December 22, 2016, before Administrative Law Judge (ALJ) Robert Droker presiding from Jacksonville, Florida, and Plaintiff appeared in Gainesville, Florida. Tr. 15, 34-55. Plaintiff was represented by Bradford D. Myler, an attorney, but appeared at the hearing with Bradley Howes, an attorney. Tr. 15, 36, 60-62, 129-30, 193, 195-97. Plaintiff testified during the hearing. Tr. 37-51. C. Kimball Heartsill, an impartial vocational expert, testified during the hearing. Tr. 15, 51-54, 282-86 (Resume).

         During the hearing, Exhibits 1A through 22F were received into evidence. Tr. 29-33, 36. On January 13, 2017, the ALJ issued a decision and denied Plaintiff's application for benefits concluding that Plaintiff was not disabled since August 6, 2013, the date the application was filed. Tr. 15-28.

         On January 13, 2017, Plaintiff requested review by the Appeals Council of the ALJ's decision. Tr. 196-97. On February 14, 2017, the Appeals Council granted a request for more time to submit additional evidence. Tr. 9. On March 10, 2017, Plaintiff's counsel filed a brief with the Appeals Council. Tr. 287-94. On August 22, 2017, the Appeals Council noted that it had reviewed records submitted from Pennsylvania Psychiatric Instituted dated from May 15, 2013, to May 21, 2013 (seven pages), see Tr. 63-68 (three pages of medical records), and denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. Tr. 1-7; see 20 C.F.R. § 404.981.

         On November 13, 2017, Plaintiff, by counsel, filed a Complaint with this Court seeking review of the ALJ's decision. ECF No. 1. The parties filed memoranda of law, ECF Nos. 17 and 18, which have been considered.

         II. Findings of the ALJ

         The ALJ made several findings:

1. “The claimant has not engaged in substantial gainful activity since August 6, 2013, the application date.” Tr. 17.
2. “The claimant has the following severe impairments: schizoaffective disorder, disorder of the spine, asthma, drug abuse and alcoholism, and attention deficit hyperactivity disorder (ADHD).” Tr. 17. The ALJ considered Plaintiff's non-severe knee impairment, noted medical evidence, and concluded this alleged impairment has been considered in formulating Plaintiff's residual functional capacity (RFC). Tr. 18.
3. “The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 18. For physical impairments, the ALJ considered Listings 1.00 and 3.00. Id. The ALJ noted that in September 2013, Plaintiff underwent an anterior cervical diskectomy and fusion and that he received conservative care following surgical intervention and physical examinations have been relatively remarkable. Id. The ALJ also considered Listings 12.02, 12.03, 12.04, and 12.09 and the four broad functional areas set out in the disability regulations known as the “paragraph B” criteria and determined that Plaintiff had moderate restriction in activities of daily living; moderate difficulties social functioning, and concentration, persistence, or pace; and no episodes of decompensation that have been of extended duration. The ALJ also considered whether the “paragraph C” criteria were satisfied and found they were not. Tr. 18-20. The ALJ noted, however, that the limitations identified in the “paragraph B” criteria are not an RFC assessment, but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. Tr. 20.
4. “[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 416.967(b) with the following limitations: The claimant needs to avoid ladders or unprotected height. He needs to avoid the operation of heavy moving machinery. He needs to avoid concentrated dusts, fumes, or gases. He needs a low stress work environment (that is, no production line). He needs simple tasks. He needs to avoid contact with the public or coworkers; he needs tasks that do not require the assistance of others or require him to assist others in the performance of their tasks. He can occasionally bend, crouch, kneel, or stoop. He needs to avoid squatting or crawling. He needs to avoid the operation of foot controls.” Tr. 20.
5. The claimant is unable to perform any past relevant work such as dining room attendant, medium exertion, unskilled with an SVP of 2.[2] Tr. 26.
6. The claimant was 43 years old, which is defined as a younger individual age 18-49, on the date the application was filed; has a limited education; and is able to communicate in English. Id. “Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled.” Tr. 27.
7. Considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform such as blade balancer and bone picker, both light exertion, unskilled with an SVP of 2 and table worker, sedentary exertion, unskilled with an SVP of 2. Tr. 27-28, 52-54; see supra at 5, n.2. The ALJ explained:
At the hearing, the vocational expert testified that an employee is permitted two fifteen minute breaks and a minimum 30-minute lunch break during the workday. The vocational expert noted that employers tolerate no more than 10% off task behavior, and employers (sic) are allowed a maximum of two unscheduled absences per month after accrued time is exhausted. The vocational expert utilized his expertise and years of experience in the job market when testifying on permitted breaks, off task behavior, and unscheduled absences. Pursuant to SSR 00-4p, other testimony given by the vocational expert is consistent with the Dictionary of Occupational Titles.

Tr. 28; see Tr. 52-54.

         8. “The claimant has not been under a disability, as defined in the Social Security Act, since August 6, 2013, the date the application was filed.” Tr. 28.

         III. Legal Standards Guiding Judicial Review

         This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner's factual findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).[3]

         “In making an initial determination of disability, the examiner must consider four factors: ‘(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'” Bloodsworth, 703 F.2d at 1240 (citations omitted). A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, “but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A disability is 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); see 20 C.F.R. §§ 416.905(a), 416.909 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002).

         The Commissioner analyzes a claim in five steps. 20 C.F.R. § 416.920(a)(4)(i)-(v).

1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
4. Does the individual have the RFC to perform work despite limitations and are there any impairments which prevent past relevant work?[4]
5. Do the individual's impairments prevent other work?

         A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 416.920(a)(4)(v), (f) & (g). An ALJ may make this determination either by applying the grids or by obtaining the testimony of a vocational expert. Phillips, 357 F.3d at 1239-40; see 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). Plaintiff bears the burden of proving that he is disabled, and consequently, is responsible for producing evidence in support of his claim. See 20 C.F.R. § 416.912(a); Moore, 405 F.3d at 1211.

         IV. Legal Analysis

         Substantial evidence supports the ALJ's evaluation of the medical evidence, including the consultative examination opinions of Dawn G. Crosson, Psy.D., and Ronald J. Karpf, Ph.D.


         Plaintiff argues substantial evidence does not support the ALJ's decision to give little weight to the opinions of Drs. Crosson and Karpf, who provided one-time psychological consultative examination evaluations on May 2, 2013, Tr. 541-44, and March 20, 2014, Tr. 649-53, respectively. ECF No. 17 at 13-23; see Tr. 21-23.[5] In support of this argument, Plaintiff argues “the ALJ seemingly rejected both opinions for a singular reason: that they were based on Plaintiff's subjective complaints, T 22-23, ” ECF No. 17 at 15 (emphasis added), and “while the ALJ does provide other reasons for rejecting Dr. Crosson's opinion, the stated reasons are poorly cited and explained. T 22, ” id. at 19. Plaintiff also suggests Dr. Crosson “had access and reviewed Plaintiff's medical health records of and to that date. T 542.” Id. at 17. As for his evaluation of Dr. Karpf's opinion, Plaintiff argues “the ALJ did not provide any other reasons apart from the ‘subjective statement' analysis when rejecting the opinion. T 23.” Id. at 19.


         The ALJ began the RFC analysis with a discussion of Plaintiff's hearing testimony. Tr. 21; see Tr. 37-51.

The claimant is 47 years of age and alleges an inability to work due to paranoia, schizophrenia, depression, suicidal attempts, very little reading and writing, and removal of disc from neck (Exhibit 2E/2) [Tr. 229]. The claimant noted that he has experienced body trembling since his neck surgery, and the ...

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