United States District Court, M.D. Florida, Tampa Division
HONORABLE CHRISTOPHER P. TUTTE UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks judicial review of the Commissioner's
denial of his claims for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) payments. For the
reasons discussed below, the Commissioner's decision is
Plaintiff was born in 1965, has a high school education, and
has past relevant work experience as a pipe fitter, glass
installer, maintenance repairer, and janitor. (R. 25). In
December 2013, the Plaintiff applied for DIB and SSI,
alleging disability as of December 1, 2012, due to high blood
pressure and a broken neck from a car accident. (R. 16,
202-17, 239). The Social Security Administration denied his
applications both initially and on reconsideration.
Plaintiff's request, an Administrative Law Judge (ALJ)
conducted a hearing on the matter on February 18, 2016. (R.
50-61). The Plaintiff was represented by counsel at that
hearing and testified on his own behalf. Id.
the hearing, the ALJ had the Plaintiff submit to physical and
psychological consultative examinations conducted by Dr.
Anand Rao (R. 796-804) and Dr. Sally Strader (R. 782-88),
respectively. In addition, the ALJ sent two sets of
interrogatories to a vocational expert (VE). The VE responded
to these interrogatories on September 6 and December 21,
2016. (R. 306-09, 321-24). Plaintiff's counsel also posed
several written questions to the VE, to which the VE
responded on November 28, 2016. (R. 328-29).
decision dated April 5, 2017, the ALJ found that the
Plaintiff: (1) was insured for DIB through December 31, 2017,
and had not engaged in substantial gainful activity since his
alleged onset date; (2) had the severe impairments of
obesity, hypertension, muscle spasm, cervicalgia/cervical
sprain/strain, and lumbago/lumbar sprain/strain; (3) did not,
however, have an impairment or combination of impairments
that met or medically equaled the severity of any of the
listed impairments; (4) had the residual functional capacity
(RFC) to perform a limited range of light work,
insofar as he was able to “lift and/or carry 20 pounds
occasionally, 10 pounds frequently, stand and/or walk for 4
hours in an 8-hour workday, and sit for 4 hours in an 8-hour
day, ” among other limitations; and (5) based upon the
VE's testimony, could not perform his past relevant work
but was capable of performing other jobs in significant
numbers in the national economy-namely, the representative
occupations of marker, ticket taker, and mail clerk. (R.
16-27). In light of these findings, the ALJ concluded that
the Plaintiff was not disabled. (R. 27).
Appeals Council denied the Plaintiff's request for
review. (R. 1-7). Accordingly, the ALJ's decision became
the final decision of the Commissioner.
Social Security Act (the Act) defines disability as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected
to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),
416.905(a). A physical or mental impairment under the
Act “results from anatomical, physiological, or
psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3),
determine whether a claimant is disabled, the Regulations
prescribe “a five-step, sequential evaluation
process.” Carter v. Comm'r of Soc. Sec.,
726 Fed.Appx. 737, 739 (11th Cir. 2018) (citing 20 C.F.R.
§ 404.1520(a)(4)); 20 C.F.R. §
416.920(a)(4).Under this process, an ALJ must determine
whether the claimant: (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) has
the RFC to perform past relevant work; and (5) can perform
other work in the national economy given his RFC, age,
education, and work experience. Carter, 726
Fed.Appx. at 739 (citing Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)). While the claimant has the
burden of proof through step four, the burden temporarily
shifts to the Commissioner at step five. Sampson v.
Comm'r of Soc. Sec., 694 Fed.Appx. 727, 734 (11th
Cir. 2017) (citing Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999)). If the Commissioner carries that
burden, the claimant must then prove that he cannot perform
the work identified by the Commissioner. Id. In the
end, “the overall burden of demonstrating the existence
of a disability . . . rests with the claimant.”
Washington v. Comm'r of Soc. Sec., 906 F.3d
1353, 1359 (11th Cir. 2018) (quoting Doughty v.
Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
claimant who does not prevail at the administrative level may
seek judicial review in federal court provided that the
Commissioner has issued a final decision on the matter after
a hearing. 42 U.S.C. § 405(g). Judicial review is
limited to determining whether the Commissioner's
decision is supported by substantial evidence and whether he
applied the correct legal standards. Id.;
Hargress v. Soc. Sec. Admin., Comm'r,
883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (citation omitted).
“Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Hargress,
883 F.3d at 1305 n.2 (quoting Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). In
evaluating whether substantial evidence supports the
Commissioner's decision, the Court “may not decide
the facts anew, make credibility determinations, or re-weigh
the evidence.” Carter, 726 Fed.Appx. at 739
(citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (per curiam)). While the court accords deference
to the Commissioner's factual findings, “no such
deference is given to [his] legal conclusions.”
Keel-Desensi v. Berryhill, 2019 WL 1417326, at *2
(M.D. Fla. Mar. 29, 2019) (citations omitted).
Plaintiff raises four issues on appeal: (1) the ALJ's
finding that he could perform the jobs of marker, ticket
taker, and mail clerk is not supported by substantial
evidence; (2) the ALJ failed to properly assess the opinion
of the physical consultative examiner, Dr. Rao; (3) the
hypothetical the ALJ posed to the VE was incomplete because
it did not comprise all of the limitations that Dr. Rao
opined the Plaintiff had; and (4) the ALJ failed to weigh the
opinion of another consultative examiner, Dr. Ladapo Shyngle.