United States District Court, M.D. Florida, Tampa Division
HONORABLE CHRISTOPHER P. TUTTE UNITED STATES MAGISTRATE
Plaintiff seeks judicial review of the Commissioner's
denial of his claim for Supplemental Security Income (SSI)
payments. For the reasons discussed below, the
Commissioner's decision is affirmed.
Plaintiff was born in 1968, completed the ninth grade, and
has past relevant work experience as a dump truck driver,
carpenter helper, HVAC helper, road roller operator, and
general road laborer. (R. 92, 295). In January 2015, the
Plaintiff applied for SSI, alleging disability as of May 1,
2014, by reason of a missing right toe and lower back
problems. (R. 538). The Social Security Administration (SSA)
denied his application both initially and on reconsideration.
(R. 338, 351).
Plaintiff's request, an Administrative Law Judge (ALJ)
conducted a hearing on the matter on March 1, 2017. (R.
291-329). The Plaintiff was represented by counsel at that
hearing and testified on his own behalf. Id. A
vocational expert (VE) also testified. (R. 324-26). The
hearing was adjourned, however, to allow the Plaintiff to
attend a consultative psychological examination. That
consultative exam was conducted on March 28, 2017. (R.
961-67). The hearing resumed roughly three weeks later,
during which the Plaintiff provided additional testimony and
a second VE testified. (R. 270-90).
decision dated September 20, 2017, the ALJ found that the
Plaintiff: (1) had not engaged in substantial gainful
activity since his application date of January 22, 2015; (2)
had the severe impairments of anxiety, depressive disorder,
amputation of the great left toe, chronic obstructive
pulmonary disease, and cervical and lumbar spine degenerative
disc disease; (3) did not, however, have an impairment or
combination of impairments that met or medically equaled the
severity of any of the listed impairments; (4) had the
residual functional capacity (RFC) to perform light
exertional work with some additional functional, postural,
environmental, and mental limitations; and (5) based in part
on the VE's testimony, could not perform his past
relevant work but was capable of performing other jobs in
significant numbers in the national economy. (R. 80-94). In
light of these findings, the ALJ concluded that the Plaintiff
was not disabled. (R. 94).
Appeals Council considered additional medical evidence
post-dating the ALJ's decision but, finding it did not
provide a basis for changing the ALJ's decision, denied
the Plaintiff's request for review on March 23, 2018. (R.
1-7). Accordingly, the ALJ's decision became the final
decision of the Commissioner.
Social Security Act (the Act) defines disability as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a);
416.905(a). A physical or mental impairment under the
Act “results from anatomical, physiological, or
psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3),
determine whether a claimant is disabled, the Social Security
Regulations prescribe “a five-step, sequential
evaluation process.” Carter v. Comm'r of Soc.
Sec., 726 Fed.Appx. 737, 739 (11th Cir. 2018) (citing 20
C.F.R. § 404.1520(a)(4)); 20 C.F.R. §
416.920(a)(4). Under this process, an ALJ must determine
whether the claimant: (1) is performing substantial gainful
activity; (2) has a severe impairment; (3) has a severe
impairment that meets or equals an impairment specifically
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has
the RFC to perform past relevant work; and (5) can perform
other work in the national economy given his RFC, age,
education, and work experience. Carter, 726
Fed.Appx. at 739 (citing Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)). While the claimant has the
burden of proof through step four, the burden temporarily
shifts to the Commissioner at step five. Sampson v.
Comm'r of Soc. Sec., 694 Fed.Appx. 727, 734 (11th
Cir. 2017) (citing Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999)). If the Commissioner carries that
burden, the claimant must then prove that he cannot perform
the work identified by the Commissioner. Id. In the
end, “the overall burden of demonstrating the existence
of a disability . . . rests with the claimant.”
Washington v. Comm'r of Soc. Sec., 906 F.3d
1353, 1359 (11th Cir. 2018) (quoting Doughty v.
Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
claimant is dissatisfied with an ALJ's decision, he may
request that the Appeals Council review the action. 20 C.F.R.
§§ 404.967, 416.1467. In conducting this review,
the Appeals Council must determine “if ‘the
[ALJ's] action, findings, or conclusion is contrary to
the weight of the evidence currently of record.'”
Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d
1253, 1261 (11th Cir. 2007) (citing 20 C.F.R. §
Appeals Council action, “a claimant may seek a remand
[by the district court] based on evidence that was properly
before the Commissioner under sentence four of 42 U.S.C.
§ 405(g).” Lindsey v. Comm'r of Soc.
Sec., 741 Fed.Appx. 705, 709-10 (11th Cir. 2018) (citing
Ingram, 496 F.3d at 1266-68). As with other Social
Security appeals, judicial review is limited to determining
whether the Commissioner's decision is supported by
substantial evidence and whether she applied the correct
legal standards. See 42 U.S.C. § 405;
Hargress v. Soc. Sec. Admin., Comm'r,
883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (citation omitted).
“Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Hargress,
883 F.3d at 1305 n.2 (quoting Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). In
evaluating whether substantial evidence supports the
Commissioner's decision, the Court “may not decide
the facts anew, make credibility determinations, or re-weigh
the evidence.” Carter, 726 Fed.Appx. at 739
(citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005)). Indeed, it is the province of the Commissioner,
not the courts, to resolve conflicts in the evidence and to
assess the credibility of the witnesses. Grant v.
Richardson, 445 F.2d 656 (5th Cir. 1971). Thus, the
Court's role is confined to determining whether the
record, as a whole, contains sufficient evidence to permit a
reasonable mind to conclude that the claimant is not
disabled. Moore, 405 F.3d at 1211. Where this
quantum of evidence exists, the Court must affirm the
Commissioner's decision “even if the proof
preponderates against it.” Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Philips, 357 F.3d at 1240 n.8). While the court
accords deference to the Commissioner's factual findings,
“no such deference is given to [her] legal
conclusions.” Keel-Desensi v. Berryhill, 2019
WL 1417326, at *2 (M.D. Fla. Mar. 29, 2019) (citations
Plaintiff's sole contention on appeal is that the Appeals
Council erred in its consideration of the evidence the
Plaintiff submitted to it after the ALJ's decision. (Doc.
27 at 6-8). That evidence consisted of: (1) a February 14,
2018, certification from a physician, Dr. Bhavik Vala,
stating that the Plaintiff was disabled by stomach cancer
with an onset date of November 29, 2017 (R. 102); (2)
February 15, 2018, emergency room records from Florida
Hospital in Zephyrhills, which indicated that the Plaintiff
reported symptoms of back pain, abdominal pain, nausea,
vomiting, and hematemesis (R. 245); (3) a lumbar spine CT
scan performed on February 15, 2018 (R. 248); (4) a February
19, 2018, report from an orthopedic surgeon, who reviewed
Plaintiff's lumbar spine imaging (R. 194); and (5)
February 21, 2018, emergency room records for treatment of
the Plaintiff's right neck pain (R. 153). The Plaintiff
asserts that the stomach cancer diagnosed by Dr. Vala could
reasonably be the cause of his symptoms of bleeding,
vomiting, and weight loss which he complained about at the
hearing, and that ...