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Fivecoat v. Berryhill

United States District Court, M.D. Florida, Tampa Division

July 3, 2019

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



         Annmarie Fivecoat seeks judicial review of a decision by the Commissioner of Social Security (Commissioner) denying her claim for disability insurance benefits under the Social Security Act, 42 U.S.C. Section 405(g). After reviewing the record, including a transcript of the proceedings before the Administrative Law Judge (ALJ), administrative record, pleadings, and joint memorandum the parties submitted, it is RECOMMENDED that the Commissioner's decision be AFFIRMED.


         Ms. Fivecoat applied for disability benefits because of a disability she claims began on September 28, 2013. (Tr. 190-91). Disability examiners denied her application initially and after reconsideration. (Tr. 101, 111). Ms. Fivecoat then requested and received a hearing before an ALJ, who found Ms. Fivecoat not disabled. (Tr. 12-27).

         The Appeals Council denied Ms. Fivecoat's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. (Tr. 1- 6). Ms. Fivecoat seeks judicial review of the Commissioner's final decision. (Doc. 1).


         A. Background

         Ms. Fivecoat was fifty-one years old when she submitted her application for disability benefits. (Tr. 190-91). Ms. Fivecoat has a high school education and past relevant work experience as a general manager. (Tr. 22).

         B. Summary of the ALJ's Decision

         The ALJ must follow five steps when evaluating a claim for disability.[1] 20 C.F.R. § 404.1520(a). First, if a claimant is engaged in substantial gainful activity, [2]she is not disabled. § 404.1520(b). Second, if a claimant has no impairment or combination of impairments that significantly limit her physical or mental ability to perform basic work activities, then she has no severe impairment and is not disabled. § 404.1520(c); see McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (stating step two acts as a filter and “allows only claims based on the most trivial impairments to be rejected”). Third, if a claimant's impairments fail to meet or equal an impairment in the Listings, she is not disabled. § 404.1520(d); 20 C.F.R. pt. 404, subpt. P, app. 1. Fourth, if a claimant's impairments do not prevent her from performing past relevant work, she is not disabled. 20 C.F.R. § 404.1520(e). At this fourth step, the ALJ determines the claimant's residual functional capacity (RFC).[3]Fifth, if a claimant's impairments (considering her RFC, age, education, and past work) do not prevent her from performing other work that exists in the national economy, then she is not disabled. § 404.1520(g).

         The ALJ here determined Ms. Fivecoat had not engaged in substantial gainful activity from her alleged onset date (September 28, 2013) through her last-insured date (December 31, 2013). (Tr. 17). The ALJ found Ms. Fivecoat had these severe impairments: multiple sclerosis, hypertension, and arthritis. (Id.). Despite these impairments, the ALJ found Ms. Fivecoat's impairment or combination of impairments fail to meet or medically equal the severity of an impairment in the Listings. (Tr. 18).

         The ALJ found Ms. Fivecoat had an RFC to perform sedentary work from September 28, 2013 through December 31, 2013.[4] (Id.). Specifically, Ms. Fivecoat could:

[S]it for six hours and stand/walk up to two hours each in an 8-hour workday. [Ms. Fivecoat] can lift and carry up to 10 pounds. [Ms. Fivecoat] can never climb ropes, ladders or scaffolds; occasionally climb ramps and stairs; no crawling; occasional kneeling; frequent bilateral manual dexterity functions (fine and gross manipulation) and, must avoid exposure to extreme heat and workplace hazards.

(Id.). Based on these findings, the testimony at the hearing, and the opinions of a vocational expert (VE), the ALJ determined Ms. Fivecoat could perform her past relevant work from September 28, 2013 through December 31, 2013. (Tr. 22). As a result, the ALJ found Ms. Fivecoat not disabled during that three-month period. (Tr. 23).

         III. ANALYSIS

         A. Standard of Review

         Review of the ALJ's decision is limited to determining whether the ALJ applied correct legal standards and whether substantial evidence supports her findings. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more than a mere scintilla but less than a preponderance. Dale v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citation omitted). In other words, there must be sufficient evidence for a reasonable person to accept as enough to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations omitted).

         A reviewing court must affirm a decision supported by substantial evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not make new factual determinations, reweigh evidence, or substitute its judgment for the Commissioner's decision. Id. at 1240 (citation omitted). Instead, the court must view the whole record, considering evidence favorable and unfavorable to the Commissioner's decision. Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citation omitted) (stating that the reviewing court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual determinations).

         B. Issues on Appeal

         Ms. Fivecoat argues these six issues on appeal: (1) whether the ALJ properly considered the combined effect of Ms. Fivecoat's impairments (Doc. 12, pp. 8-10); (2) whether the ALJ posed a hypothetical to the VE that included all Ms. Fivecoat's impairments (Id. at pp. 10-13); (3) whether the ALJ properly weighed the opinions of Ms. Fivecoat's treating physicians Michael Franklin, M.D. and Corey Evans, M.D. (Id. at pp. 14-17); (4) whether the ALJ wrongly substituted his own opinion for that of physical therapist Zoltan Bouwhuis (Id. at pp. 22-23); (5) whether the ALJ adequately developed the duties of Ms. Fivecoat's past relevant work as a general manager (Id. at pp. 24-25); and (6) whether the ALJ properly considered Ms. Fivecoat's subjective statements of symptoms and limitations (Id. at pp. 26-28).

         1. Combined Effect of Ms. Fivecoat's Impairments

         Ms. Fivecoat argues the ALJ failed to properly consider the combined effect of her impairments in reaching his RFC determination. (Doc. 12, pp. 8-10). In response, the Commissioner contends the ALJ properly considered Ms. Fivecoat's impairments and substantial ...

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