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Robles v. Commissioner of Social Security

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

August 5, 2019

NORMA ALICIA ROBLES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on consideration of Magistrate Judge Douglas N. Frazier's Report and Recommendation (Doc. #26), filed on July 2, 2019, recommending that the Decision of the Commissioner be reversed and remanded. The Commissioner filed Objections (Doc. #28) on July 16, 2019, and plaintiff filed a Response (Doc. #29) on July 30, 2019.

         I. ALJ Decision

         On May 21, 2015, Norma Alicia Robles (Robles) filed an application for supplemental security income alleging a disability onset date of October 15, 2014. (Doc. #17-2, Tr. 15.) At Step One, the Administrative Law Judge (ALJ) found that Robles had not engaged in substantial gainful activity since the date of the application of May 21, 2015. (Id., Tr. 17.) At Step Two, the ALJ found that Robles had degenerative disc disease of the lumbar spine and degenerative joint disease of the hips. The ALJ also noted a history of a right wrist fracture, headaches, and high blood pressure, but found no relevant subsequent treatment for these impairments and thus no evidence of function limitations. (Id., Tr. 17-18.) The ALJ found that Robles' medically determinable mental impairment of depression did not cause more than a minimal limitation, and that it was non-severe. Under the four areas of mental functioning, the ALJ found only mild limitations with understanding, remembering, or applying information; with interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing herself. Thus, the medically determinable mental impairment was found to be non-severe. (Id., Tr. 18-19.)

         The ALJ concluded that Robles did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. The ALJ found that Robles had the residual functional capacity to perform light work, except that she could occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds. The ALJ further found that Robles could stand and/or walk for about six hours in an eight-hour workday with normal breaks. The ALJ found that Robles could sit for about six hours in an eight-hour workday with normal breaks. The ALJ noted that Robles should no more than occasionally climb ladders, ropes, and scaffolds; stoop; or crawl but that she could frequently climb ramps and stairs; kneel; or crouch. The ALJ found that Robles should avoid concentrated exposure to extreme heat, extreme cold, humidity, vibration, fumes, odors, dust, gases, poor ventilation, and hazards such as unprotected heights and dangerous machinery. The ALJ found that Robles should no more than frequently handle and finger with her right upper extremity. (Id., Tr. 19-20.)

         The ALJ found that Robles' statements concerning the intensity, persistence and limiting effects of the symptoms of her medically determinable impairments were not entirely consistent with the medical evidence or other evidence in the record. The ALJ found that the treatment records did not support greater function limitations beyond the reduced range of light work. The ALJ noted that the treatment records indicated only conservative treatment for back or hip pain. (Id., Tr. 21-22.)

         The ALJ considered and gave substantial weight to the State agency medical consultant Sharmishtha Desai. The ALJ gave limited weight to the consultative examination in January 2015 by State agency medical consultant Esha M. Kibria, D.O. because it failed to give specific limitations of functions. (Id., Tr. 22.) State agency consultant Glenn Broga was given no weight because the physical assessment was made by a single decision maker, which is not a medically accepted source. (Id., Tr. 23.)

         The ALJ found that Robles' allegations regarding her daily activities was not persuasive. The ALJ found that the described activities suggested that Robles was capable of sustaining simple, unskilled work activities within the parameters set forth in the residual functional capacity. The ALJ found that Robles was not able to perform any past relevant work. The ALJ heard from a vocational expert and accepted the testimony as credible and consistent with the Dictionary of Occupational Titles. (Id.)

         Robles was 52 years old at the time of the application and is defined as an “individual closely approaching advanced age.” (Id.) Robles has a limited education and is able to communicate in English. In light of Robles' age, education, work experience, and residual functional capacity, the ALJ found there exist a significant number of jobs in the national economy that Robles could perform. 24.)

         Robles argued that she should be found disabled because she is “closely approaching advance age and has a limited education.” (Id., Tr. 24.) The ALJ disagreed having found that Robles had the residual functional capacity for light, not sedentary work. (Id.) The vocational expert testified that Robles would be able to do one of three jobs with light exertional work: hotel housekeeper, counter attendant, or mail sorter. The ALJ concluded that Robles was not disabled. (Id., Tr. 25.)

         II. Report and Recommendation

         The Magistrate Judge considered only one issue on appeal: Whether the ALJ erred by failing to acknowledge or discuss the ‘borderline age situation' in the case. (Doc. #26, p. 5.) The Magistrate Judge noted that an ALJ may not exclusively rely on grids when a claimant is unable to perform a full range of work, of if limited basic work skills. The Magistrate Judge considered a two-part test noting that plaintiff was within a few days or a few months of a higher age category as she was 54 years, 6 months, and 12 days old at the date of the decision. Applying the same factors under Grid Rule 202.11 to one of ‘advanced age', the Magistrate Judge found that this would mandate a finding of disabled. Because the ALJ failed to acknowledge the borderline age issue, the Magistrate Judge found reversible error. The Magistrate Judge acknowledged that the Eleventh Circuit has not decided whether the ALJ has a responsibility to identify borderline age situation, but the Magistrate Judge was more persuaded by cases assigning responsibility. Being unpersuaded by the other arguments, the Magistrate Judge found remand to be heard on the issue was appropriate.

         III. Standard of Review

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). A district judge “shall make a de novo determination of those portions of the report or specified proposed ...


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