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Salermo v. Saul

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

September 19, 2019

ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         The plaintiff in this case seeks judicial review of the denial of his claims for Social Security disability benefits and supplemental security income payments.[2] Because the Administrative Law Judge did not fulfil his duty under Social Security Ruling (S.S.R.) 00-4p to investigate, and resolve with an explanation, an apparent inconsistency between the testimony of a vocational expert and the Dictionary of Occupational Titles (DOT), the decision of the Commissioner of Social Security will be reversed and the matter remanded for further proceedings.


         The plaintiff, who was forty-nine years old at the time of the administrative hearing and who has a high school education (Tr. 41-42), has worked as a produce clerk, toll collector, shipping and receiving clerk, security guard, order picker, and cashier (Tr. 51). He filed claims for Social Security disability benefits and supplemental security income payments, alleging that he became disabled on March 31, 2013 (Doc. 1, p. 1; Tr. 16), due to depression, anxiety, chronic fatigue syndrome, and a heart attack (Tr. 42). The claims were denied initially and upon reconsideration (Tr. 16).

         The plaintiff, at his request, then received a de novo hearing before an administrative law judge (Tr. 39-57). The law judge found that the plaintiff has the following severe impairments: history of myocardial infarction, arteriosclerotic cardiovascular disease, cardiomyopathy, dyslipidemia, diabetes mellitus, Alzheimer's disease, bipolar disorder, major depressive disorder, panic disorder, social anxiety disorder, and cognitive disorder (Tr. 18). In light of those impairments, the law judge determined (Tr. 19):

the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he would have been able to lift and/or carry 20 pounds occasionally, 10 pounds frequently; stand and/or walk for 4 hours in an 8 hour day; sit for 4 hours in an 8 hour day; require a sit stand option with an alternating interval of 30 to 60 minutes; occasional pushing and/or pulling with the upper extremities, climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; avoid climbing ladders and scaffolds; frequent reaching waist to chest with both arms, reaching above shoulder level with both arms, handling with both hands, fingering with both hands, and feeling; frequent work around extreme cold, extreme heat, wetness and humidity, vibration, and pulmonary irritants; occasional work around moving mechanical parts; no work around high, exposed places; able to perform simple, routine, repetitive tasks; able to understand, remember, and carry out simple instructions, limited to work that requires occasional changes in the work setting; limited to work that requires occasional interaction with the public, coworkers, and supervisors, unable to meet fast paced, high production demands.

         The law judge concluded that, with these limitations, the plaintiff was unable to perform any past relevant work (Tr. 25). The claimant's age category was found to have changed on March 31, 2017, from "a younger individual age 45-49" to "an individual closely approaching advanced age" (Tr. 25). Prior to the age category change, the law judge determined, based on the testimony of a vocational expert, the plaintiff could perform other jobs that exist in significant numbers in the national economy, such as addresser, lens inserter, and zipper joiner (Tr. 26). However, after the age category change as of March 31, 2017, the law judge found "there are no jobs that exist in significant numbers in the national economy that the claimant could perform" (Tr. 26). Accordingly, the law judge decided that the plaintiff was disabled beginning on March 31, 2017 (id.). but not beginning on March 31, 2013, the date that the plaintiff alleged he became disabled. The Appeals Council let the decision of the law judge stand as the final decision (Tr. 1).


         In order to be entitled to Social Security disability benefits and supplemental security income, a claimant must be unable "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 twelve months." 42 U.S.C. 423(d)(1)(A), l382c(a)(3)(A). A "physical or mental impairment," under the terms of the Social Security Act, is one "that 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).

         A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence. 42 U.S.C. 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial evidence test, "findings of fact made by administrative agencies ... may be reversed ... only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings." Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied. 544 U.S. 1035 (2005).

         It is, moreover, the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971). Similarly, it is the responsibility of the Commissioner to draw inferences from the evidence, and those inferences are not to be overturned if they are supported by substantial evidence. Celebrezze v. O'Brient, 323 F.2d 989, 990 (5th Cir. 1963).

         Therefore, in determining whether the Commissioner's decision is supported by substantial evidence, the court is not to reweigh the evidence, but is limited to determining whether the record as a whole contains sufficient evidence to permit a reasonable mind to conclude that the claimant is not disabled. However, the court, in its review, must satisfy itself that the proper legal standards were applied and legal requirements were met. Lamb v. Bpwen, 847 F.2d 698, 701 (11th Cir. 1988).


         The plaintiff challenges the law judge's decision on three grounds: (1) "The ALJ failed to properly consider and weigh the opinions of various doctors in the record"[3] (Doc. 14, p. 11-12); (2) "The ALJ failed to perform a proper psychiatric review technique analysis as required by law" (id. at p. 16); and (3) "The ALJ reached an improper conclusion at step five as the requirements of jobs the ALJ found the plaintiff could perform require dealing with detailed tasks and the ALJ limited the plaintiff to performing simple, ...

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