United States District Court, M.D. Florida, Jacksonville Division
MEMORANDUM OPINION AND ORDER
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.)
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.
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,
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.
Standard of Review
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).
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.)
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.)
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).
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 ...