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Jules v. Berryhill

United States District Court, S.D. Florida

September 27, 2019

TONY JULES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          ALICIA O. VALLE, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Tony Jules’ Motion for Summary Judgment and Defendant Nancy A. Berryhill’s, Acting Commissioner of the Social Security Administration, Motion for Summary Judgment and Response (ECF Nos. 19, 20, 21) (the “Motions”). Pursuant to the parties’ consent, this case is before the undersigned for all proceedings, including trial and entry of final judgment. (ECF Nos. 15, 16); see also 28 U.S.C. § 636(c).

         Accordingly, after due consideration of the record, the Motions, and having heard oral argument and being otherwise fully advised on the matter, Plaintiff’s Motion is DENIED, Defendant’s Motion is GRANTED, and the Administrative Law Judge’s (“ALJ’s”) Decision is AFFIRMED for the reasons set forth below.

         I. PROCEDURAL HISTORY

         This suit involves applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. § 401 et seq. (the “Act”). Plaintiff alleged a disability onset date of April 1, 2014, which he later amended to January 1, 2016. (R. 39, 186).[1] Plaintiff’s claim was denied initially and again upon reconsideration. (R. 108-13, 118-28). Plaintiff subsequently requested a hearing, which was held before ALJ Sylvia H. Alonso on March 17, 2017. (R. 36, 129-130). Plaintiff, appearing with counsel, and a Vocational Expert, both testified at the hearing. (R. 38-66).

         On May 2, 2017, the ALJ issued a decision (the “Decision”) denying Plaintiff’s application and finding that Plaintiff was not disabled within the meaning of the Act. (R. 21-35). Thereafter, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s Decision the Commissioner’s “final decision.” (R. 1-6); see Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Plaintiff now seeks judicial review of the ALJ’s Decision. (ECF No. 1); see also 42 U.S.C. § 405(g). Both parties have moved for summary judgment, and the Motions are ripe for adjudication. (ECF Nos. 19, 20, 21).

         II. STANDARD OF REVIEW

         Judicial review of the ALJ’s Decision is limited to whether there is substantial evidence in the record as a whole to support the ALJ’s finding and whether the ALJ applied the correct legal standards in making her determination. Carson v. Comm’r of Soc. Sec., 440 F. App’x 863, 864 (11th Cir. 2011) (citations omitted); see also 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Carson, 440 F. App’x at 864 (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)); accord Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (substantial evidence is “more than a scintilla, but less than a preponderance”). A court, however, “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted). Even if evidence preponderates against the ALJ’s Decision, a court must affirm “if the decision is supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing 42 U.S.C. § 405(g)). Within this narrow role, however, courts do not act as automatons. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); Brightmon v. Soc. Sec. Admin., Comm’r, 743 F. App’x 347, 351 (11th Cir. 2018). Rather, they “must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” MacGregor, 786 F.2d at 1053 (citing Bloodsworth, 703 F.2d at 1239); Brightmon, 743 F. App’x at 351 (citation omitted).

         To qualify for benefits, a claimant must be disabled within the meaning of the Act. See 42 U.S.C. §§ 423 (standard for DIB), 1382 (standard for SSI). A claimant is disabled if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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), 1382c(a)(3)(A). A “physical or mental impairment” 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).

         To determine eligibility, the ALJ employs a five-step sequential evaluation:

(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Part 404, Subpart. P, Appendix 1 (the “Listings”)?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). An affirmative answer to any of the above questions leads either to the next question or, on Steps 3 and 5, to a finding of disability. McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). A negative answer to any question, other than Step 3, leads to a determination of “not disabled.” Id.

         Importantly, the burden of proof rests on the claimant through Step 4. Phillips v. Barnhart, 357 F.3d 1232, 1241 n.10 (11th Cir. 2004). At Step 4, the ALJ must consider: (i) the claimant’s residual functional capacity (“RFC”); and (ii) the claimant’s ability to return to his past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The regulations define RFC as that which an individual is still able to do despite the limitations caused by his impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ will “assess and make a finding about [the claimant’s RFC] on all the relevant medical and other evidence” in the case. 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC assessment is used to determine whether the claimant can return to his past relevant work under Step 4, and if so, “the ALJ will conclude that the claimant is not disabled.” Phillips, 357 F.3d at 1238 (citations omitted). If a claimant cannot return to his past relevant work, then the ALJ proceeds to Step 5. Id.

         At Step 5, the ALJ considers the claimant’s RFC, age, education, and work experience to determine whether the claimant “can make an adjustment to other work.” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Phillips, 357 F.3d at 1239 (citation omitted). The ALJ must determine if there is other work available in significant numbers in the national economy that the claimant can perform. Phillips, 357 F.3d at 1239. If the claimant can make the adjustment to other work, the ALJ will determine that the claimant is not disabled. Id. Conversely, if the claimant cannot make the adjustment to other work, the ALJ will determine that the claimant is disabled. Id. The ALJ may determine whether the claimant can adjust to other work in the national economy by either: (1) applying the Medical Vocational Guidelines (contained within 20 C.F.R. Part 404, Subpart P, Appendix 2); or (2) using a Vocational Expert, who can opine on whether someone with the claimant’s limitations can obtain employment in the national economy. Id. at 1239-40.

         III. THE RECORD

         A. Plaintiff’s Testimony and Relevant Background

         Plaintiff was 62 years old at the time of the administrative hearing. (R. 42). Plaintiff was born in Haiti, where he attended school through 9th or 11th grade. Compare (R. 42) (Plaintiff’s testimony that he completed 9th grade) with (R. 243, 373) (Adult Disability Report and report to consultative examiner noting that Plaintiff completed 11th grade).

         Plaintiff alleged a disability due to a stroke and head injury. (R. 67, 73). At the administrative hearing, Plaintiff testified that he suffered two strokes in March 2014, and has had constant and severe pain in his left upper and lower extremities ever since.[2] (R. 50, 53). Plaintiff testified that one of his doctors prescribed a cane, but could not recall who prescribed it and admitted that he never used the cane at work. (R. 50, 52-53). Plaintiff estimated that the pain on his left leg and side limited his ability to stand to less than 15 minutes, sit for between 6-8 minutes, and walk for about 2-5 minutes. (R. 53-55). Plaintiff described his left leg and foot as “terrible, ” and said he had physical therapy exercises to do at home. (R. 55).

         Regarding the pain in his upper extremities, Plaintiff testified that he suffered from constant severe pain in his left shoulder, much as he did in his legs. (R. 56). The shoulder pain sometimes affected his ability to get dressed. Id. Plaintiff lifted between 10 to 11 pounds at his maintenance job at McDonald’s. Id. Plaintiff complained that his left hand was very sensitive to cold, and he could not get “anything frozen” at his McDonald’s job. (R. 56-57). Plaintiff took pain, sleep, and blood circulation medications without side effects. (R. 57-58).

         In terms of work and daily activities, Plaintiff testified that he has worked at McDonald’s since 1981. (R. 49). Plaintiff works between 9 to 12 hours during a 5-day week, doing maintenance work. (R. 48). Since the stroke, Plaintiff can no longer operate the dishwasher. Id. Plaintiff lives alone in an apartment, which he shares during the school year with his 16-year-old son. (R. 43, 58-59). Although Plaintiff is physically able to drive and “never [had a] problem driv[ing], ” he does not drive because his license is expired. (R. 45-46).

         B. Vocational Expert’s Testimony

         A Vocational Expert (“VE”) testified at the hearing and categorized Plaintiff’s past relevant work as a kitchen helper (an unskilled, medium job with an SVP of 2); and cleaner, commercial or institutional (an unskilled, heavy job with an SVP of 2). (R. 60-61). The ALJ asked the VE whether a hypothetical individual of Plaintiff’s age, education, and work experience with the limitations in Plaintiff’s RFC, could perform Plaintiff’s past relevant work. (R. 61). Specifically, the ALJ limited the hypothetical individual to frequently climbing ramps, stairs, ladders, ropes, and scaffolds; frequently stooping, kneeling, crouching, and crawling; frequently handling, fingering, and feeling with the left upper extremity; and frequent bilateral far acuity. Id. Additionally, the individual must avoid concentrated exposure to extreme cold, heat, and humidity.[3] Id. In response, the VE advised that the hypothetical individual could perform Plaintiff’s past relevant work as a kitchen helper. (R. 62). According to the VE, a “Kitchen Helper basically works in the back of the kitchen gathering supplies, putting them out, washing trays and cookware, and there is nothing in the hypothetical that would prevent those essential duties of Kitchen Helper.” Id. The VE thus concluded that Plaintiff’s past work would be “consistent with the DOT.”[4] Id.

         Next, the ALJ asked the VE whether there were other jobs in the national economy that a hypothetical individual with Plaintiff’s RFC could perform. (R. 62-63). The VE testified that such an individual could also work as a bagger (an unskilled, medium job with an SVP of 2), cleaner II (an unskilled, medium job with an SVP of 1), and merchandise deliverer (an unskilled, medium job with an SVP of 2). (R. 63-64). In response to questions from the ALJ, the VE testified that there were no conflicts, apparent or otherwise, between the hypothetical limitations and the DOT. Id.

         Plaintiff’s counsel further limited the hypothetical individual to only occasional (as opposed to frequent) handling, fingering, and feeling with the left upper extremity. (R. 64). The VE testified that such an individual would be precluded from these jobs, unless the employer offered a “reasonable accommodation.” (R. 65). Additionally, if the individual needed to use a cane, that individual would be precluded from all jobs at the medium exertional level. Id. Lastly, if the individual were to be off task more than 5% of the work day in closely supervised ...


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