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Manning v. Berryhill

United States District Court, M.D. Florida, Fort Myers Division

July 1, 2019

KEVIN MANNING, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Kevin Manning, seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed legal memoranda setting forth their respective positions. For the reasons set out herein, the decision of the Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

         I. Social Security Act Eligibility, Standard of Review, Procedural History, and the ALJ's Decision

         A. Social Security Act Eligibility

         The law defines disability as the inability to do 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 twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant unable to do his previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.

         B. Standard of Review

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate support to a conclusion. Even if the evidence preponderated against the Commissioner's findings, we must affirm if the decision reached is supported by substantial evidence.” Crawford v. Comm'r, 363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894 F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However, the District Court will reverse the Commissioner's decision on plenary review if the decision applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). The Court reviews de novo the conclusions of law made by the Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42 U.S.C. § 405(g).

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. At step one, the claimant must prove that he is not undertaking substantial gainful employment. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found not disabled. 20 C.F.R. § 404.1520(a)(4)(i).

         At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the claimant's impairment or combination of impairments does not significantly limit his physical or mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and the claimant will be found not disabled. 20 C.F.R. § 1520(c).

         At step three, the claimant must prove that his impairment meets or equals one of impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of age, education and work experience. Doughty, 245 F.3d at 1278.

         At step four, if the claimant cannot prove that his impairment meets or equals one of the impairments listed in Appendix 1, he must prove that his impairment prevents him from performing his past relevant work. Id. At this step, the ALJ will consider the claimant's RFC and compare it with the physical and mental demands of his past relevant work. 20 C.F.R. § 1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then he will not be found disabled. Id.

         At step five, the burden shifts to the Commissioner to prove that the claimant is capable of performing other work available in the national economy, considering the claimant's RFC, age, education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If the claimant is capable of performing other work, he will be found not disabled. Id. In determining whether the Commissioner has met this burden, the ALJ must develop a full and fair record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the Commissioner meets this burden does the burden shift back to the claimant to show that he is not capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).

         C. Procedural History

         Plaintiff filed an application for a period of disability and DIB and an application for SSI on April 23, 2009, alleging disability beginning April 13, 2005. (Tr. 565-81). The applications were denied initially and upon reconsideration. (Tr. 457-60, 461-64). Plaintiff requested a hearing and on February 22, 2011, a hearing was held before an administrative law judge (“ALJ”). (Tr. 354-82). The ALJ denied Plaintiff's claim by decision dated April 28, 2011, but the Appeals Council issued a remand order on August 26, 2011. (Tr. 398-406, 411). The ALJ again denied Plaintiff's claim on November 27, 2012, however, the Appeals Council issued another remand order on April 17, 2014. (Tr. 416-446, 447-53).

         On remand, a different ALJ, Maria Northington, held a second remand hearing on November 19, 2014, and, on May 8, 2015, issued a partially favorable decision. (Tr. 24-58, 209-67). The decision was partially favorable because the ALJ found that Plaintiff met the definition of disability on and after January 1, 2014 but not before. (Tr. 28-49). Because Plaintiff's date last insured was December 31, 2007, this finding resulted in a denial of her DIB claim, and an award of SSI benefits beginning in January 2014 rather than in April 2009 when she filed her application for SSI benefits. Plaintiff requested review by the Appeals Council, which denied the request for review on June 6, 2016. (Tr. 17-19). The Council granted a request for an extension of time to file the civil action on March 2, 2018. Plaintiff initiated the instant action by Complaint (Doc. 1) on April 4, 2018. The parties having filed a joint memorandum setting forth their respective positions, this case is ripe for review.

         D. Summary of the ALJ's Decision

         At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 13, 2005, the alleged onset date. (Tr. 31). At step two, the ALJ found that since April 13, 2005, the alleged onset date, Plaintiff has had the following severe impairments: mild to moderate lumbar facet arthropathy with disc space loss at ¶ 3/L4 (all other discs are intact), borderline intellectual functioning with history of learning problems and mood disorder with depression and anxiety. (Tr. 31). The ALJ further found that beginning January 1, 2014, Plaintiff has had the following severe impairments: disc collapse at ¶ 3/L4 with significant spurring and increased chronic lumbar pain, mild to moderate lumbar facet arthropathy with disc space loss at ¶ 3/L4 (all other discs are intact), borderline intellectual functioning with a history of learning problems, and mood disorder with depression and anxiety. (Tr. 31). At step three, the ALJ found that since the alleged onset date of disability, April 13, 2005, Plaintiff has not had an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 32).

         Before proceeding to step four, the ALJ found that prior to January 1, 2014, Plaintiff had the residual ...


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