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Romero v. Saul

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

September 23, 2019

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

          OPINION AND ORDER [2]


         I. Status

         Leticia M. Romero (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying her claims for disability income benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the result of stage two colon cancer. See Transcript of Administrative Proceedings (Doc. No. 14; “Tr.” or “administrative transcript”), filed June 13, 2018, at 258, 272, 397. Plaintiff filed applications for DIB on March 27, 2015[3] and for SSI on December 16, 2015, Tr. at 363, alleging a disability onset date of February 8, 2015, Tr. at 258, 273, 371. The applications were denied initially, Tr. at 167, 258-70, 271, 288, 289-91, and upon reconsideration, Tr. at 167, 272-86, 287, 293, 294-98.[4]

         On March 2, 2017, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 184-233. Plaintiff was fifty-two years old at the time of the hearing. Tr. at 188. The ALJ issued a Decision on May 2, 2017, finding Plaintiff not disabled through the date of the Decision. Tr. at 167-77.[5]

         Thereafter, Plaintiff requested review of the Decision by the Appeals Council. See Tr. at 360. The Appeals Council received additional evidence in the form of a brief authored by Plaintiff’s counsel. Tr. at 5, 6; see Tr. at 361 (brief). On February 9, 2018, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-4, thereby making the ALJ’s Decision the final decision of the Commissioner. On April 6, 2018, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision.

         On appeal, Plaintiff makes six arguments: 1) “[t]he ALJ erred by not addressing each impairment alleged by . . . Plaintiff”; 2) “[t]he ALJ failed to provide a complete hypothetical question to the [VE] because he failed to mention all of . . . Plaintiff’s documented symptoms”; 3) “[t]he ALJ’s conclusions about Plaintiff’s obesity pursuant to [Social Security Ruling (‘SSR’)] 02-1p are erroneous and inconsistent”; 4) “[t]he ALJ failed to properly evaluate Plaintiff’s documented complaints of pain and the supportive objective findings”; 5) “[t]he ALJ’s residual functional capacity [(‘RFC’)] assessment is not supported by substantial evidence”; and 6) “[t]he ALJ erred by not making findings regarding the combination of . . . Plaintiff’s impairments.” Plaintiff’s Memorandum of Law in Opposition to the Commissioner’s Decision Denying Plaintiff Disability Insurance Benefits and Supplemental Security Income Benefits (Doc. No. 20; “Pl.'s Mem.”), filed October 11, 2018, at 7 (emphasis omitted). On December 10, 2018, Defendant filed a Memorandum in Support of the Commissioner (Doc. No. 21; “Def.’s Mem.”) addressing Plaintiff's arguments. After a thorough review of the entire record and consideration of the parties’ respective memoranda, the undersigned finds that the Commissioner’s final decision is due to be affirmed.

         Plaintiff’s fifth argument regarding the ALJ’s RFC determination is deemed to be waived for lack of development as Plaintiff’s “argument” consists entirely of case law. Pl.’s Mem. at 11-12; see, e.g., N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (stating that “[i]ssues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived”); see also T.R.C. ex rel. Boyd v. Comm’r, 553 F. App’x. 914, 919 (11th Cir. 2014) (citing McClain in a Social Security appeal and noting that the appellant “fail[ed] to develop any arguments demonstrating that the ALJ erred in his conclusions...”); Scheduling Order (Doc. No. 15), entered June 13, 2018, at 1 (directing parties to “identify with particularity the grounds upon which the administrative decision is being challenged, ” advising them that “[a]ny such challenges must be supported by citation to the record of the pertinent facts and by citations of the governing legal standards, ” and that “[a]ny contention for which these requirements are not met is subject to being disregarded for insufficient development”). Accordingly, the undersigned does not address Plaintiff’s fifth argument.

         II. The ALJ’s Decision

         When determining whether an individual is disabled, [6] an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four, and at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         Here, the ALJ followed the five-step sequential inquiry. See Tr. at 169-76. At step one, the ALJ found that Plaintiff Ahas not engaged in substantial gainful activity since February 8, 2015, the alleged onset date.” Tr. at 169 (emphasis and citation omitted). The ALJ found at step two that Plaintiff “has the following severe impairments: a history of rectal cancer with postsurgical colostomy and subsequent hernia at the colostomy site; history of hypothyroidism; history of hyperlipidemia; history of diabetes and a history of morbid obesity.” Tr. at 169 (emphasis and citation omitted). At step three, the ALJ concluded that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.@ Tr. at 171 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b). Specifically, [Plaintiff] can sit for 4 hours and stand/walk for 4 hours each in an 8[-]hour workday with the option to alternate her position between sitting and standing and walking every thirty minutes; she can lift/carry 20 pounds occasionally and 10 pounds or less more frequently; she can push and pull arm, hand or foot/pedal controls occasionally; she can occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; she can never crawl or squat; all other postural activities can be done occasionally (including balancing, stooping, crouching and kneeling); she can reach in all directions, handle, finger and feel without limitation; she should have no exposure to unprotected heights or work around dangerous moving machinery and concentrated industrial vibrations and she should work in a temperature controlled environment with access to a restroom as needed.

Tr. at 172 (emphasis omitted).

         At step four, the ALJ relied on the testimony of the VE and found that Plaintiff “is unable to perform any of her past relevant work.” Tr. at 175 (emphasis and citation omitted). At step five, after considering Plaintiff’s age (“50 years old . . . on the alleged disability onset date”), education (“a limited education”), work experience, and RFC, the ALJ relied again on the testimony of the VE and found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform, ” Tr. At 175 (emphasis and citation omitted), such as “Marker, ” “Router, ” and “Routing Clerk, ” Tr. at 176. The ALJ concluded that Plaintiff “has not been under a disability . . . from February 8, 2015 through the date of th[e D]ecision.” Tr. at 176 (emphasis and citation omitted).

         III. Standard of Review

         This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation omitted). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

         IV. ...

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