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Jimenez v. Commissioner of Social Security

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

July 29, 2019

JANE P. JIMENEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          ROY B. DALTON JR., UNITED STATES DISTRICT JUDGE

         In this social security appeal, Plaintiff Jane Jimenez seeks review of the Commissioner of Social Security's final decision denying her application for social security disability benefits. (Doc. 1.) On referral, U.S. Magistrate Judge Daniel C. Irick recommends affirming the Commissioner's final decision. (Doc. 20 (“R&R”).) Both Plaintiff and the Commissioner objected to the R&R (Doc. 21 (“Plaintiff's Objection”); Doc. 22 (“Commissioner's Objection”)), and the Commissioner responded to Plaintiff's Objection (Doc. 25). On de novo review, the Court finds: (1) the Commissioner's Objection is sustained; (2) Plaintiff's Objection is overruled; (3) the R&R is adopted in part and rejected in part;[1] and (4) the Commissioner's final decision is affirmed.

         I. Background

         On October 11, 2012, Plaintiff applied for disability insurance benefits. (Doc. 1; see also R. 112.)[2] She alleged a disability onset date of March 30, 2009 and her last date of insured was December 31, 2014. (R. 12.)

         After her claims were denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge (“ALJ”). (R. 112.) On March 24, 2015, following a hearing, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act (“SSA”) between March 30, 2009 and December 31, 2014. (R. 112- 125.) Plaintiff sought review of the ALJ's decision, and the Appeals Council remanded the matter to the ALJ to further evaluate Plaintiff's mental impairments “in accordance with the special technique described in 20 CFR 404.1520a.” (R. 133-34.) On remand, the ALJ conducted a hearing on April 20, 2017, at which Plaintiff and her attorney appeared. (R. 44-65.)

         On May 8, 2017, the ALJ entered an unfavorable decision finding that Plaintiff was not disabled. (R. 10-27.) Following the SSA's five-step sequential process, the ALJ found that Plaintiff had these severe impairments: affective disorder, thyroid disorder, and drug and alcohol abuse. (R. 12.) The ALJ then found that Plaintiff had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in the SSA regulations. (R. 13-14.) The ALJ assessed Plaintiff's residual functional capacity (“RFC”):

         5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c). She needed to avoid ladders and unprotected heights. She needed to avoid the operation of heavy moving machinery. She needed a low stress job with no production lines. She needed simple tasks. She needed to avoid contact with the public. She needed to avoid contact with coworkers. She needed tasks that did nut require the assistance of others or require her to assist others in the performance of their tasks.

         (R. 14.) The ALJ found that Plaintiff had no past relevant work and considered whether any jobs existed in significant numbers in the national economy she could perform, finding:

         10. Through the dated last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that claimant could have performed. (20 CT'R 404.1569 and 404.1569(a)).

         In determining whether a success fill adjustment to other work can be made, the undersigned must consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404. Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either "disabled" or "not disabled" depending upon the claimant's specific vocational profile (SSR 83-11). When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the medical-vocational rules are used as a framework for decisionmaking unless there is a rule that directs a conclusion of "disabled" without considering the additional exertional and/or nonexertional limitations (SSRs 83-12 and 83*14), If the claimant has solely nonexertional limitations, section 204, 00 in the Medical-Vocational Guidelines provides a framework for decisionmaking (SSR 85-15).

         Through the date last insured, if the claimant had the residual functional capacity to perform the full range of medium work, a finding of "not disabled" would be directed by Medical-Vocational Rule 203.15 and Rule 203.07. However, the claimant's ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations. To determine the extent to which these limitations erode the unskilled medium occupational base, through the date last insured, the Administrative Law Judge asked the vocational expert whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would have been able to perform the requirements of representative occupations such as jobs:

• Hospital Cleaner, DOT # 323, 687-010, SVP 2, unskilled, medium exertion, 298, 000 positions in the national economy;
• Hand Packager, DOT # 920.587-018, SVP 2, unskilled, medium exertion, 217, 000 positions in the national economy:
• Laundry Worker I, DOT #361.687-018, SVP 2, unskilled, medium exertion, 321, 000 positions in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles.
Based on die testimony of die vocational expert, die undersigned concludes that, through the date last insured, considering die claimant's age, education work experience, and residual functional capacity, the claimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. A finding of "not disabled" is therefore appropriate under the framework of the above-cited rules.

(R. 25-26.)

         The ALJ concluded that Plaintiff was “not disabled.” (R. 26.) Plaintiff then requested review of the decision by the Appeals Council. (R. 1-6.) Her request was denied, so the ALJ's decision became final. (R. 1.) Plaintiff then sued requesting review of the Commissioner's decision and reversal for an award of benefits or remand. (Doc. 1.) As grounds, Plaintiff cited three assignments of error: (1) the ALJ failed to properly weigh the medical opinion evidence pertaining to her mental impairments; (2) the ALJ failed to properly weigh the medical opinion evidence pertaining to her physical impairments; and (3) the ALJ erred in finding she could perform other work in the national economy. (Doc. 19, pp. 20-48.)

         On referral, Magistrate Judge Irick issued a comprehensive report and recommendation finding the Commissioner's decision should be affirmed on all assignments of error. (Doc. 20.) Both parties objected. (Docs. 21, 22.) Plaintiff asserted the Court should reject Magistrate Judge Irick's findings regarding: (1) Plaintiff's mental limitations; (2) the RFC determination; and (3) Plaintiff's ability to perform work that exists in significant numbers in the national economy. (Doc. 21.) The Commissioner responded to Plaintiff's Objection (Doc. 25) and separately objected to the R&R's assumption that Dr. Raul Zimmerman was Plaintiff's treating physician and footnote 9 regarding an acceptable medical source (Doc. 22). Magistrate Judge Irick then issued the Supplemental R&R recommending the Court disregard footnote 9, which neither party objected to. (Doc. 27.) So the Court now reviews the R&R de novo based on Plaintiff's Objection and the remainder of the Commissioner's Objection. The matter is ripe.

         II. Legal Standards

         When a party objects to a magistrate judge's findings, the district court must “make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The district court must consider the record and factual issues based on the record independent of the magistrate judge's report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).

         III. Discussion

         Plaintiff's Objection raises three issues (Doc. 21) and the Commissioner's Objection now raises one (Doc. 22).[3] The Court addresses each.

         A. Treating Physician Argument

         The Commissioner objects to the R&R's recommendation this Court assume Dr. Zimmerman was Plaintiff's treating physician (“Dr. Zimmerman Recommendation”). (Doc. 22, pp. 2-3; see Doc. 20, p. 8 n.6.) The Commissioner contends Plaintiff never challenged the Commissioner's determination that Dr. Zimmerman was not her treating physician, so Plaintiff waived the right to challenge that issue and the “Court ...


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