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Kelly v. Saul

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

August 22, 2019

RUDOLPH KELLY, SR., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         The Plaintiff seeks judicial review of the Commissioner's denial of his claim for Supplemental Security Income (SSI) payments. For the reasons discussed below, the Commissioner's decision is affirmed.


         The Plaintiff was born in 1966, has a tenth-grade education, and has no past relevant work experience. (R. 35, 37, 50). In July 2014, the Plaintiff applied for SSI, alleging disability as of January 1, 1990, due to depression and an unspecified mental condition. (R. 56-57, 225). The Social Security Administration (SSA) denied his application both initially and on reconsideration. (R. 56-83).

         At the Plaintiff's request, an Administrative Law Judge (ALJ) conducted a hearing on the matter on December 22, 2016. (R. 29, 97-99). At the commencement of that hearing, the Plaintiff amended his onset date to his July 2014 application date. (R. 33). The Plaintiff then testified regarding certain mental health and physical impairments, including a knee condition, he claimed rendered him unable to work. (R. 33-49). A vocational expert (VE) also testified. (R. 49-53).

         At the conclusion of the hearing, Plaintiff's counsel suggested that the ALJ order an updated consultative examination (CE) of the Plaintiff, particularly with respect to his physical impairments. (R. 53). The ALJ denied this request, explaining that the Plaintiff did not allege any physical impairments in his application and that, to the extent he subsequently claimed to have a knee issue, this impairment was “accounted for” in the more recent medical records. (R. 54). The ALJ also declined to order a mental CE, noting that the consultative examiner who last evaluated the Plaintiff found that “some secondary gain issues appeared evident.”[2] Id.

         Notwithstanding her decision not to order a physical or mental CE, the ALJ offered to leave the record open for the Plaintiff to obtain his own CE. Id. The Plaintiff declined this offer. Id.

         In a decision dated February 22, 2017, the ALJ found that the Plaintiff: (1) had not engaged in substantial gainful activity since his July 2014 application date; (2) had the severe impairments of obesity, bipolar disorder, generalized anxiety disorder, antisocial personality disorder, moderate depressive disorder with mixed features, and degenerative joint disease of the right knee (status post arthroscopic surgery); (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 engage in light work subject to certain physical, mental, and other limitations; and (5) based in part on the VE's testimony, could perform jobs that exist in significant numbers in the national economy. (R. 17-23). In light of these findings, the ALJ concluded that the Plaintiff was not disabled. (R. 23).

         The Appeals Council denied the Plaintiff's request for review. (R. 1-6). Accordingly, the ALJ's decision became the final decision of the Commissioner.


         The 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).[3] 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), 1382c(a)(3)(D).

         To determine whether a claimant is disabled, the Social Security 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).[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 engage in 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)).

         A 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 ...

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