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Pezza v. Acting Commissioner of Social Security Administration

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

August 2, 2018

ROSE MARIE PEZZA, Plaintiff,
v.
ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER[1]

          MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE

THIS CAUSE is before the Court on Plaintiff's appeal of an administrative decision denying her applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). Plaintiff filed her application for SSI on August 20, 2013, and her application for DIB on October 10, 2013. (Tr. 72-73, 182-83.) Plaintiff alleged she became disabled on June 1, 2012. (Tr. 10.) Plaintiff's applications were denied initially and on reconsideration. (Tr. 7-17.) A hearing was held before the assigned Administrative Law Judge (“ALJ”) on April 18, 2016, at which Plaintiff was represented by an attorney. (Tr. 34-49.) The ALJ found Plaintiff not disabled since June 1, 2012, the alleged onset date, through June 8, 2016, the date of the decision. (Tr. 17.)

         The ALJ found that Plaintiff had the “following severe impairments: degenerative disc disease of the cervical and lumbar spine, [and] osteoarthritis of the knee status post right total knee arthroplasty.” (Tr. 12.) The ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or equals the severity of the listings. (Tr. 13.) The ALJ made the following residual functional capacity (“RFC”) finding:

[Plaintiff] has the [RFC] to perform light work as designed in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally balance, stoop, and climb ramps and stairs. The claimant can never climb ladders, ropes or scaffolds, kneel, crouch or crawl. She cannot use the lower extremities to operate foot controls.

(Tr. 13.)

         The ALJ determined that Plaintiff could perform her past relevant work (“PRW”) as a cashier and manager, based in part on the testimony of the vocational expert (“VE”). (Tr. 17.) The ALJ then concluded that Plaintiff was not disabled from June 1, 2012 through June 8, 2016. Id.

         Plaintiff is appealing the Commissioner's decision that she was not disabled during the relevant time period. Plaintiff has exhausted her available administrative remedies and the case is properly before the Court. The Court has reviewed the record, the briefs, and the applicable law. For the reasons stated herein, the undersigned determines that the Commissioner's decision is REVERSED and REMANDED.

         I. Standard of Review

         The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Where 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 v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); 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 v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings).

         II. Discussion

         Plaintiff argues one general point on appeal: that the ALJ erred in finding that Plaintiff could perform her PRW as a cashier and manager. (Doc. 16 at 4.) Plaintiff specifically contends that her work as a cashier did not qualify as PRW because she did not perform the position at substantial gainful activity (“SGA”) levels and she did not perform her work as a manager long enough for her to learn the position. (Doc. 16 at 4-5.)

         The Commissioner responds that Plaintiff failed to meet her burden of proving that Plaintiff could not perform her PRW as a cashier and retail store manager. (Doc. 17 at 3.) The Commissioner contends that because Plaintiff failed to raise her argument prior to filing this appeal, any alleged error by the ALJ regarding PRW was invited, and thus waived. (Id. at 6.) The Commissioner also argues that the ALJ properly considered and relied on the testimony of the VE that an individual could perform Plaintiff's prior work as a cashier and retail store manager. (Doc. 14 at 5.)

         The undersigned cannot find that the ALJ properly developed the record with respect to Plaintiff's PRW. An ALJ has a duty to create a full and fair record. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). In order to fulfill this basic obligation, the ALJ has a duty to “investigate the facts and develop arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000). Remand for failure to develop the record is guided by whether or not “the record reveals evidentiary gaps which result in unfairness or ‘clear prejudice.'” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Clear prejudice requires a showing that the ALJ did not consider all of the evidence in the record in reaching his decision. Newberger v. Astrue, No. 3:07-cv-585-J-HTS, 2008 WL 299012, at *3 (M.D. Fla. Feb 1, 2008).

         At step four, the ALJ will determine that a claimant is not disabled if she can return to her PRW. 20 C.F.R. §§ 404.1560(b), 416.960(b). PRW is SGA that a claimant has performed within the past 15 years and has lasted long enough for the claimant to learn how to perform the job. 20 C.F.R. §§ 404.1565(a), 416.965(a). SGA is work that involves doing ...


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