United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
MCCOY UNITED STATES MAGISTRATE JUDGE
the Court is the Complaint, filed on June 28, 2018. (Doc. 1).
Plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“SSA”) denying his claim for a period of
disability and disability insurance benefits
(“DIB”) and his claim for 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 a joint memorandum detailing their
respective positions. For the reasons set forth herein, the
decision of the Commissioner is AFFIRMED
pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
Social Security Act Eligibility, the ALJ Decision, and
Standard of Review
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result
in death or that 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), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. The impairment must be
severe, making the Plaintiff unable to do his previous work
or any other substantial gainful activity that exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505-.1511,
March 26, 2012, Plaintiff filed an application for disability
insurance benefits and supplemental security income. (Tr. at
367, 371). Plaintiff alleged an onset date of December 19,
2011. (Id.). His application was denied initially on
June 1, 2012 and again on reconsideration on July 17, 2012.
(Id. at 123, 145). A hearing was held before
Administrative Law Judge (“ALJ”) T. Whitaker on
December 29, 2014 in Fort Myers, Florida. (Id. at
70). ALJ Whitaker issued an unfavorable decision on February
6, 2015, finding Plaintiff not to be under a disability from
December 19, 2011 through the date of the decision.
(Id. at 163). Plaintiff requested a review of the
decision, and the Appeals Council granted the request,
remanding the case for further consideration of
Plaintiff's maximum residual functional capacity and
directing the ALJ to evaluate the treating source opinion of
Dr. Robert E. Tomas and directing the ALJ, if warranted, to
obtain supplemental evidence from a vocational expert.
(Id. at 170-71).
second hearing was held before ALJ Elizabeth Palacios on
October 28, 2016. (Id. at 35). ALJ Palacios rendered
an unfavorable decision on August 2, 2017. (Id. at
21). Plaintiff requested a review of that decision, and on
May 17, 2018, the Appeals Council denied Plaintiff's
request for review. (Id. at 1). Plaintiff filed a
Complaint in the United States District Court on June 28,
2018. (Doc. 1). This case is ripe for review. The parties
consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 15).
Summary of the ALJ's Decision
must follow a five-step sequential evaluation process to
determine if a Plaintiff has proven that he is disabled.
Packer v. Comm'r of Soc. Sec., 542 Fed.Appx.
890, 891 (11th Cir. 2013) (citing Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must
determine whether the Plaintiff: (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) can perform her past relevant work; and
(5) can perform other work found in the national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th
Cir. 2004). The Plaintiff has the burden of proof through
step four, and then the burden shifts to the Commissioner at
step five. Hines-Sharp v. Comm'r of Soc. Sec.,
511 Fed.Appx. 913, 915 n.2 (11th Cir. 2013).
found that Plaintiff meets the insured status requirements of
the Social Security Act through December 31, 2017. (Tr. at
12). At step one of the sequential evaluation, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since December 19, 2011, the alleged onset date.
(Id.). At step two, the ALJ determined that
Plaintiff suffered from the following severe impairments:
“osteoarthritis; obesity; hyperlipidemia; gouty
arthritis; diabetes mellitus; benign hypertension; and
alcohol use.” (Id. at 13 (citing 20 C.F.R.
404.1520(c), 416.920(c))). At step three, the ALJ determined
that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. pt. 404, subpt. P,
app. 1. (Id. at 16 (citing 16 C.F.R. 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926)). At step
four, the ALJ determined the following as to Plaintiff's
residual functional capacity (“RFC”):
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium exertion, as defined in
20 CFR 404.1567(c) and 416.967(c), except as follows: every
one hour the individual requires a 5 minute break during
which the individual would remain on task, in addition to the
usual work breaks and lunch time.
(Id. at 17).
further found that Plaintiff was “capable of performing
past relevant work as a Counter Clerk, Automotive
Parts” and that “[t]his work does not require the
performance of work-related activities precluded by the
claimant's residual functional capacity (20 CFR 404.1565
and 416.965).” (Id. at 20). Thus, the ALJ
concluded that ...