United States District Court, N.D. Florida, Gainesville Division
LARRY B. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
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.
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. 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).
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.
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.
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.
Findings of the ALJ
made several findings:
1. “The claimant has not engaged in substantial gainful
activity since August 6, 2013, the application date.”
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. 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
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
Tr. 28; see Tr. 52-54.
“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.
Legal Standards Guiding Judicial Review
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).
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).
Commissioner analyzes a claim in five steps. 20 C.F.R. §
1. Is the individual currently engaged in substantial gainful
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,
4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
5. Do the individual's impairments prevent other work?
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.
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.
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. 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.
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 ...