Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bianco v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

September 27, 2019

JAMES ROBERT BIANCO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          NICHOLAS P. MIZELL, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Complaint, filed on August 20, 2018. (Doc. 1). Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of disability and disability insurance and supplemental security income benefits. The Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed a Joint Memorandum (Doc. 21). For the reasons set out herein, the decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

         I. Social Security Act Eligibility and the ALJ Decision

         A. Eligibility

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant unable to do his previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20 C.F.R. §§ 404.1505 -404.1511, 416.905 - 416.911.

         B. Procedural History

         On January 24, 2014, Administrative Law Judge Keith C. Pilkey rendered a decision finding Plaintiff not disabled from September 1, 2010, through the date of the decision. (Tr. at 83). On March 2, 2015, the Appeals Council denied Plaintiff’s request for review of ALJ Pilkey’s decision. (Id. at 91).

         On April 1, 2015, Plaintiff filed applications for a period of disability and disability insurance benefits and supplemental security income benefits. (Tr. at 114, 227-264). Plaintiff asserted an onset date of January 25, 2014. (Id. at 227). Plaintiff’s applications was denied initially on May 26, 2015, and on reconsideration on September 28, 2015. (Id. at 114, 115, 144, 145). Administrative Law Judge Troy M. Patterson (“ALJ”) held a hearing on November 2, 2016. (Id. at 41-64). The ALJ issued an unfavorable decision on October 3, 2017. (Id. at 10-21). The ALJ found Plaintiff not to be under a disability from January 25, 2014, through the date of the decision. (Id. at 20).

         On June 21, 2018, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-6). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on August 20, 2018. This case is ripe for review. The parties consented to proceed before a United States Magistrate Judge for all proceedings. (See Doc. 14).

         C. Summary of the ALJ’s Decision

         An ALJ must follow a five-step sequential evaluation process to determine if a claimant has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 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) can perform his past relevant work; and (5) can perform other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). The claimant has the burden of pursuant and proof through step four and then the burden shifts to the Commissioner at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th Cir. 2013).

         The ALJ found that Plaintiff met the insured status requirements through December 31, 2016. (Tr. at 13). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 25, 2014, the alleged onset date. (Id. at 13). At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: “Parkinson’s disease (PD); and spinal degenerative disc disease (status-post anterior cervical spinal fusion surgery) (20 [C.F.R. §§] 404.1520(c) and 416.920(c)).” (Id.). At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.925, and 416.926). (Id. at 16).

         At step four, the ALJ determined the following as to Plaintiff’s residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §§] 404.1567(a) and 416.967(a) except: lift/carry up to 10 pounds occasionally, stand for one out of 8 hours, 30 minutes at a time, walk for one out of 8 hours, 30 minutes at a time, sit for 6 out of 8 hours, 3 hours at a time, with need to use a cane for walking outside, with ability to occasionally push/pull and frequently reach, handle, finger and feel with the hands and frequently operate foot controls, unable to climb ladders, ropes or scaffolds, or to crouch or crawl, but able to occasionally perform other postural activities such as climbing ramps/stairs, balancing, stooping and kneeling, with no exposure to unprotected elevations or operation of motor vehicles, but with occasional exposure to moving mechanical parts, humidity and wetness, and frequent exposure to pulmonary irritants, temperature extremes and vibration, with ability to shop, travel alone, walk without 2 canes or crutches, walk a block at a reasonable pace on a rough or uneven surface, use public transportation, climb a few steps at a reasonable pace with a single handrail, sort, handle and use paper files, and carry out personal care such as meal preparation, self-feeding and maintenance of personal hygiene.

(Id. at 16-17).

         The ALJ determined that Plaintiff is unable to perform his past relevant work as a salesclerk and kitchen helper. (Id. at 19). The ALJ considered Plaintiff’s age, education, work experience, and residual functional capacity (“RFC”), and found that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 20). The ALJ noted that the vocational expert identified the following representational occupations that an individual with Plaintiff’s age, education, work experience, and RFC would be able to perform: (1) plastic design applier, DOT # 690.686-046; (2) document preparer, DOT # 249.587-018; and (3) table worker, DOT # 739.687-182. (Id.).[1] The ALJ concluded that Plaintiff was not under a disability at any time from January 25, 2014, through the date of the decision. (Id.).

         II. Analysis

         A. Standard of Review

         The scope of this Court’s review is limited to determining whether the ALJ applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

         Where the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that “the evidence preponderates against” the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).

         On appeal, Plaintiff raises the following issues, as stated by the parties:

(1) Whether the ALJ properly assessed Plaintiff’s mental impairments;
(2) Whether the ALJ failed to properly develop the record;
(3) Whether the ALJ erred in relying on the vocational expert’s statement that an individual with Plaintiff’s RFC was capable of making a successful adjustment to work that exists in significant numbers in the national economy;
(4) Whether the ALJ properly considered the opinion of Dr. Kibria; and
(5) Whether the ALJ properly considered Plaintiff’s tremors.

(Doc. 21 at 17, 28, 32, 40, 42). The Court addresses each issue below.

         B. Whether the ALJ Properly Assessed Plaintiff’s ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.