United States District Court, S.D. Florida
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
O. VALLE, UNITED STATES MAGISTRATE JUDGE
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.
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.
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). 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).
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).
STANDARD OF REVIEW
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
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),
determine eligibility, the ALJ employs a five-step sequential
(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
(5) Is the person unable to perform any other work within the
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
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.
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.
Plaintiff’s Testimony and Relevant Background
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).
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. (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).
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).
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).
Vocational Expert’s Testimony
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. 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.” Id.
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.
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