Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fairbrother v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

August 1, 2018


v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL C. IRJCK UNITES STATES MAGISTRATE JUDGE

         Lena Mae Fairbrother (Claimant) appeals the Commissioner of Social Security's final decision denying her applications for disability benefits and supplemental security income. Doc. 1. Claimant argues that the Administrative Law Judge (ALJ) erred by: 1) finding that Claimant could perform her past relevant work; and 2) failing to give appropriate weight to the opinions of Claimant's treating physician, Dr. Gary Weiss, M.D. (a neurologist). Doc. 19. Claimant requests that the matter be reversed and remanded for a supplemental hearing. Id. at 29. For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

         I. PROCEDURAL HISTORY.

         This case stems from Claimant's applications for disability insurance benefits and supplemental security income. R. 11; Doc. 19 at 1. Claimant alleged a disability onset date of February 28, 2014. R. 11. Claimant's applications were denied on initial review and on reconsideration. Id. The matter then proceeded before an ALJ. Id. On January 10, 2017, the ALJ held a hearing, at which Claimant and his representative (the same attorney filing this appeal) appeared. Id. The ALJ entered his decision on February 15, 2017. Id. Claimant timely pursued her administrative remedies, and this matter is ripe for review under 42 U.S.C. § 405(g). Doc. 19 at 1-2.

         II. THE ALJ'S DECISION.

         In his decision, the ALJ found that Claimant had the following severe impairments: degenerative disc disease and degenerative joint disease. R. 13. The ALJ found that Claimant does not have an impairment or combination of impairments that meets or medically equals any listed impairment. R. 14.

         The ALJ found that Claimant has the residual functional capacity (RFC):

to lift and/or carry 25-30 pounds occasionally and 10-15 pounds frequently, sit for a total of 6 hours in an 8-hour day, and stand/walk for a total of 4-5 hours in an 8-hour day. She can occasionally climb stairs/ramps, stoop, kneel, crouch, and crawl. The claimant is also limited to frequent reaching overhead with her dominant right upper extremity.

R. 14.[1] Relying on this RFC and the testimony of the Vocational Expert (VE), the ALJ found that Claimant was unable to perform her past relevant work as actually performed but that Claimant was able to perform her past relevant work as a Cashier II as that work is generally performed. R. 18-19.[2] Thus, the ALJ concluded that Claimant was not disabled from the alleged disability onset date (February 28, 2014) through the date of the decision (February 15, 2017). R. 18-19.

         III. STANDARD OF REVIEW.

         “In Social Security appeals, [the court] must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). 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) and Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner's decision is supported by substantial evidence, the 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 v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The 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. The Court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

         IV. ANALYSIS.

         A. Past Relevant Work

         As her first assignment of error, Claimant asserts that the ALJ erred by determining that Claimant is capable of performing her past relevant work as a Cashier II. Doc. 19 at 12-14. Claimant argues that the ALJ “mistakenly” held that the VE opined that Claimant could perform the job of Cashier II “as it is generally performed.” Id. at 13. The crux of Claimant's argument is that the VE stated that there are 800, 000 jobs in the national economy with the description “Cashier II, ” but, based upon the RFC, Claimant could perform only about 20, 000 of those jobs. Id. Thus, citing to Social Security Ruling (SSR) 82-61, Claimant asserts that because Claimant could only perform 20, 000 out of 800, 000 Cashier jobs, Claimant could not perform the job of Cashier II “as it is generally performed.” Id. Other than a reference to SSR 82-61, Claimant cited no legal authority for that proposition. Id.

         In response, the Commissioner argues simply that the VE opined that there are 20, 000 Cashier II jobs that, as generally performed, Claimant could perform. Id. at 15. Thus, substantial evidence supported the ALJ's conclusion that Claimant could perform her past relevant work as a Cashier II. Id.

         The ALJ assesses the claimant's RFC and ability to perform past relevant work at step four of the sequential evaluation process. Phillips, 357 F.3d at 1238. The RFC is “an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citation omitted). In evaluating the claimant's RFC, the ALJ considers the claimant's ability to “meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). A claimant is not disabled if the claimant can return to the claimant's past relevant work. Id. at §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). To qualify as past relevant work, the work must have been done: 1) within the last fifteen (15) years; 2) long enough for the claimant to learn to do it; and 3) at a level constituting substantial gainful activity. Id. at §§ 404.1565(a), 416.965(a). The ALJ may consider the testimony of a VE in determining whether the claimant can perform his past relevant work, Hennes v. Comm'r of Soc. Sec. Admin., 130 Fed.Appx. 343, 346 (11th Cir. 2005), and other jobs in the national economy, Phillips, 357 F.3d at 1240. In order for a VE's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which is accurate and includes all of a claimant's limitations. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The ALJ, however, is not required to include each and every symptom of the claimant's impairments, Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007), or medical findings that the ALJ properly rejected as unsupported, Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004), in the hypothetical question. “The burden is on the claimant to show that she can no longer perform her past relevant work as she actually performed it, or as it is performed in the general economy.” Waldrop v. Comm'r of Soc. Sec., 379 Fed.Appx. 948, 953 (11th Cir. 2010) (citing Jackson v. Bowen, 801 F.2d 1291, 1293-94 (11th Cir.1986)).

         Here, Claimant does not challenge the propriety of the RFC, the ALJ's hypothetical questions to the VE, or the nature of Claimant's past relevant work. Instead, Claimant seeks to have the Court find as a matter of law that: if Claimant could perform only 20, 000 of 800, 000 possible positions in the national economy doing her past relevant work, then Claimant could not perform that work “as it is generally performed.” But Claimant cites no legal authority - and makes no compelling argument - for that proposition. Although Claimant points to SSR 82-61, she does so only for the underlying proposition that a claimant is not disabled if she can perform her past relevant work “as ordinarily required by employers throughout the national economy.” Id. at 13. Thus, the regulation itself provides no support for Claimant's actual argument. So the Court is left with a fairly ambiguous invitation to set an arbitrary numerical guideline for use in defining the phrase: “as it is generally performed.” The Court declines to do so. The Court's obligation is to determine whether substantial evidence supports the ALJ's decision; substantial evidence is more than a scintilla. See Foote, 67 F.3d at 1560. Based on the VE's testimony in response to the ALJ's hypothetical questions, which in turn were based appropriately on the RFC, the ALJ concluded that Claimant could perform the job of Cashier II because there existed 20, 000 of those jobs that Claimant could perform in the national economy. The Court finds that the VE's testimony constituted substantial evidence in support of the ALJ's conclusion that Claimant could perform that job ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.