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Edwards v. Berryhill

United States District Court, N.D. Florida, Tallahassee Division

May 8, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is 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.

         I. Procedural History and Testimony

         On June 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, 206.[1] 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.

         Plaintiff 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, 117-19.

         On 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.

         On July 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.

         On 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.

         A. The Hearing

         At the 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.

         When 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         Impartial 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.[2] 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, [3] 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.

         B. Findings of the ALJ

          After 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 agoraphobia.”[4] Id.
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 assessment. Id.
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 expert).
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. 30.
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.[5] 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.

         II. Legal Standards Guiding Judicial Review

         This 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).[6]

         “In 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 ...

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