United States District Court, N.D. Florida, Tallahassee Division
KRISTY A. EDWARDS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
a Social Security case referred to the undersigned United
States Magistrate Judge for a report and recommendation
pursuant to N.D. Fla. Loc. Rule 72.2(D); 28 U.S.C. §
636(b). It is now before the Court pursuant to 42 U.S.C.
§ 405(g) for review of the final determination of the
Acting Commissioner (Commissioner) of the Social Security
Administration (SSA) denying Plaintiff's Title II
application for period of disability and Disability Insurance
Benefits (DIB). After careful consideration of the entire
record, the decision of the Commissioner should be reversed
and remanded for further consideration.
Procedural History and Testimony
11, 2015, Plaintiff, Kristy A. Edwards, applied for DIB
benefits with an alleged onset date of June 19, 2011,
alleging disability based on depression, back injury,
arthritis, and learning problems. Tr. 16, 203,
Plaintiff's last date insured for DIB was December 31,
2016. Tr. 16, 203. Plaintiff's application was denied
initially on September 15, 2015, and upon reconsideration on
December 7, 2015. Tr. 16, 83-114.
requested a hearing on January 22, 2016. Tr. 16 127-28. On
May 6, 2017, Plaintiff's counsel filed a representative
brief. Tr. 295-307. On May 17, 2017, Administrative Law Judge
(ALJ) David Herman, conducted a hearing in Thomasville,
Georgia, where Plaintiff appeared and testified. Tr. 16,
51-77. Dr. John Black, an impartial vocational expert,
testified. Tr. 16, 53, 70-75, 288-90 (Resume). Plaintiff was
represented by Joseph Thomas McGraw, an attorney. Tr. 16, 53,
September 6, 2017, the ALJ entered a decision concluding that
Plaintiff was not disabled. Tr. 16-32. Plaintiff filed a
request for review of the ALJ's decision, and on October
15, 2017, Plaintiff's counsel filed a two-page
letter/brief with the Appeals Council. Tr. 175-76, 308-12.
6, 2018, the Appeals Council denied Plaintiff's request
for review, having reviewed the request for review and
additional evidence consisting of “[r]epresentative
contentions dated October 15, 2017, ” Tr. 308-12, and
medical records from Archbold Primary Care, dated November
13, 2017, Colquitt Regional Anesthesia dated February 15,
2017, to July 18, 2017, Archbold Primary Care dated June 12,
2017, and Archbold Medical Center dated June 16, 2017, Tr.
8-12, 40-50, 78-82. Tr. 1-7. The Appeals Council noted that
the ALJ “decided [Plaintiff's] case through
December 31, 2016, ” and “[t]his additional
evidence does not relate to the period at issue, ”
concluding that “[t]herefore it does not affect the
decision about whether [Plaintiff was] disabled beginning on
or before December 31, 2016.” Tr. 2. Plaintiff was
directed to file another application if she wanted
consideration regarding whether she was disabled
after December 31, 2016. Id. The ALJ's
decision stands as the final decision of the Commissioner.
See 20 C.F.R. § 404.981.
September 4, 2018, Plaintiff filed a Complaint requesting
judicial review of the Commissioner's final decision. ECF
No. 1. Plaintiff filed a memorandum of law, ECF No. 15,
followed by the Commissioner's memorandum of law, ECF No.
16, which have been considered.
hearing held on May 17, 2017, Plaintiff testified that she
currently weighed 346 or 336 pounds and was 5 '5”
tall. Tr. 55. She testified that she had gained 40 or 50
pounds in the past six months to a year. Id. She
attributed the weight gain to her inability to do what she
used to do physically. Id. She has a young daughter
who lives with her and her husband. Tr. 56. Her
mother also lives with her. Id. Plaintiff believes
she only finished sixth grade, although she was promoted to
eighth grade. Id. She testified that she dropped out
because it was hard for her. Tr. 57. She previously worked as
a server, host, and cashier for several different restaurant
chains. Tr. 59.
asked to explain why she feels that she cannot work,
Plaintiff testified that she has difficulty dealing with
people, loses patience, and says things that she should not
say. Tr. 61. She testified that she also is in pain from
physical problems and also experiences a racing heart,
sweating, and full panic attacks. Id. She said these
anxiety problems began around 2011 but she was not sure what
triggered them. Tr. 62. She has been on medication
for depression and anxiety on and off for seven years.
described her pain in her back and radiating down her left
leg. Tr. 63. She testified she has a pinched nerve
root in her back. Id. She tries to do exercises in
her home three times a week and takes hydrocodone three times
a day. Tr. 63-64. She also takes Meloxicam and gabapentin.
Tr. 64. She said she has migraines two to three times a week,
which usually last all day and sometimes into the next day.
Id. She testified she was sometimes absent at her
job two to three times a week. Tr. 64-65. She does
not use a back brace or a cane. Tr. 65.
testified that she used to use marijuana but stopped about
six years ago. Tr. 66. She said she spends her days sitting
or lying down, sometimes playing games with her daughter,
doing jigsaw puzzles, looking at Facebook or Google for two
or three hours a day, and dozing on and off. Tr. 66-67. She
testified that she does not bathe her daughter, help her
dress, cook, clean, do chores, grocery shop, or go to church
or outside activities. Tr. 67-68. She testified she has
trouble using her hands and fingers due to tendinitis in her
wrist. Tr. 69.
vocational expert John Black, Ed. D., testified based on a
hypothetical question assuming a job involving light work,
occasional climbing of stairs, never climbing ladders, ropes
or scaffolds, occasional stooping, kneeling and crouching,
but never crawling, limited to routine tasks and simple
work-related decisions, frequent contact with supervisors,
coworkers and the public. Tr. at 72. Dr. Black testified that
a person with Plaintiff's age, limited education, and
experience could not perform work as an informal waitress.
Id. Dr. Black testified that the person could
perform other work in the national economy including parking
lot cashier, routing clerk, and remnant sorter. Tr. 73. A second
hypothetical was presented which included the limitations in
the first hypothetical but reduced the exertional level from
light to sedentary and increased the restrictions on social
contact from frequent to occasional with supervisors,
coworkers, and the public. Tr. 73. Dr. Black testified that
the person could work as a document preparer, surveillance
system monitor, and telephone order clerk,  however if the
person were absent two days a month on an unscheduled basis
or were off task 15% of the workday in addition to normal
breaks, they would not be able to perform work in the
national economy. Tr. 73-74. In response to a question by
Plaintiff's counsel, Dr. Black testified that if the
person were also limited to only occasional reaching,
handling, fingering, feeling, and pushing with the upper
extremities, that would preclude the jobs identified. Tr. 75.
The ALJ noted that the medical record did not mention
tendinitis, but concluded that a nerve conduction test by Dr.
Kayas (Ex. 14F) showed Plaintiff had early mild carpal tunnel
syndrome on the right. Tr. 75-76.
Findings of the ALJ
the evidentiary hearing and after a review of the medical
record, ALJ David Herman made several findings in the
decision issued on September 6, 2017:
1. “The claimant last met the insured status
requirements of the Social Security Act on December 31,
2016.” Tr. 18.
2. “The claimant did not engage in substantial gainful
activity [SGA] during the period from her alleged onset date
of June 19, 2011[, ] through her date last insured of
December 31, 2016.” Id.
3. “Through the date last insured, the claimant had the
following severe impairments: morbid obesity, degenerative
disc disease of the lumbar and thoracic spine, thoracic
scoliosis, essential hypertension, migraine with aura, not
intractable, neuropathy, borderline personality disorder,
borderline intellectual functioning, affective disorder
variously diagnosed as major depressive disorder and mood
disorder, and anxiety disorder variously diagnosed as
generalized anxiety disorder and panic disorder with
The ALJ also considered Plaintiff's history of nocturnal
hypoxemia, carpal tunnel syndrome, and cannabis abuse, but
found these impairments are non-severe. Tr. 18-19. The ALJ
also considered Plaintiff's allegations of parestheisas,
sleep apnea, and a thoracic spine fracture and determined
they were not medically determinable impairments. Tr. 19.
4. “To the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
Tr. 19. The ALJ considered the severity of Plaintiff's
mental impairments and determined that they singly and in
combination, do not meet or medically equal the criteria of
Listings 12.02, 12.04, and 12.06. Id. The ALJ
considered the “paragraph B” criteria and
determined that Plaintiff had moderate limitation in
understanding, remembering, or applying information;
moderate limitation in interacting with others;
moderate limitation regarding concentrating,
persisting, or maintaining pace; and moderate
limitation for adapting or managing oneself. Tr. 19-20. The
ALJ also determined the evidence did not establish the
presence of the “paragraph C” criteria. Tr. 21.
The ALJ specifically stated that the “paragraph
B” criteria are not a residual functional capacity
[RFC] assessment, but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation
process. Id. The ALJ also noted that the mental RFC
assessment used at steps 4 and 5 requires a more detailed
5. “[T]hrough the date last insured, the claimant has
the [RFC] to perform light work as defined in 20 CFR
404.1567(b) except that she can occasionally stoop, kneel,
crouch, and climb ramps and stairs. She can never crawl or
climb ladders, ropes, or scaffolds. She is limited to
performing simple, routine tasks and making simple
work-related decisions. She can have weekly contact with
coworkers, supervisors, and the public.” Tr. 21;
see Tr. 72-73 (hypothetical posed to vocational
6. The claimant is unable to perform any past relevant work
as an informal waitress, light exertion, with an SVP of 3.
Tr. 30; see Tr. 72-73.
7. The claimant was 33 years old, which is defined as a
younger individual age 18-49, on the date last insured. Tr.
8. The claimant has a limited education having attended
school until the seventh or eighth grades, Tr. 22, 56, 90,
207, 743, and is able to communicate in English. Id.
(Plaintiff was unable to pass the GED due to problems with
math and reading. Tr. 488, 744.) Transferability of jobs is
not material to the determination of disability because using
the Medical-Vocational Rules (the Grids) as a framework
supports a finding that Plaintiff is not disabled whether or
not Plaintiff has transferable skills. Tr. 31.
9. “Through the date last insured, the claimant's
age, education, work experience, and [RFC], there were jobs
that existed in significant numbers in the national economy
that the claimant could have performed.” Tr. 31. The
ALJ determined that if the Plaintiff “had the [RFC] to
perform the full range of light work, a finding of ‘not
disabled' would be directed by Medical-Vocational Rule
202.18.” Id. The ALJ determined that
Plaintiff's ability to perform all or substantially all
the requirements of a full range of light work has been
impeded by additional limitations. As a result, the
vocational expert was asked whether jobs exist in the
national economy which Plaintiff can perform. The vocational
expert testified that Plaintiff can perform several
representative jobs including parking lot cashier, routing
clerk, and remnant sorter, light exertional jobs with
SVP's of 2. Tr. 31-32; see Tr. 73 (vocational
expert opinion regarding available representative jobs).
10. “The claimant has not been under a disability, as
defined in the Social Security Act, from June 19, 2011, the
alleged onset date, through December 31, 2016, the date last
insured.” Tr. 32.
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. § 404.1509
(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). In addition, an ...