United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
R. HOFFMAN UNITED STATES MAGISTRATE JUDGE.
Russell Graiber (“Claimant”) appeals the final
decision of the Commissioner of Social Security (“the
Commissioner”) denying his applications for disability
insurance benefits (“DIB”) and supplemental
security income (“SSI”) payments. Claimant raises
two arguments challenging the Commissioner's final
decision, and, based on those arguments, requests that the
matter be reversed and remanded for further administrative
proceedings. Doc. No. 18, at 10, 15, 25. The Commissioner
asserts that the decision of the Administrative Law Judge
(“ALJ”) is supported by substantial evidence and
should be affirmed. Id. at 25. It is
RESPECTFULLY RECOMMENDED that the Court
AFFIRM the final decision of the
October 18, 2012, Claimant filed applications for DIB and SSI
benefits, alleging that he became disabled on August 6, 2010.
R. 68. Claimant subsequently amended those applications to
remove his allegations of a continuing period of disability
and substitute allegations that he suffered from a closed
period of disability-July 26, 2012 through July 31, 2013.
Id. On November 25, 2014, the ALJ issued a favorable
decision finding Claimant disabled for the closed period of
disability-July 26, 2012 through July 31, 2013. R.
28, 2015, Claimant filed new applications for DIB and SSI
benefits, alleging a disability onset date of November 26,
2014. R. 252-58, 278. His claims were denied initially and on
reconsideration, and he requested a hearing before an ALJ. R.
129-31, 135-44, 146-48. A hearing was held before the ALJ on
January 3, 2018, at which Claimant was represented by an
attorney. R. 32-63. Claimant and a vocational expert
(“VE”) testified at the hearing. Id.
the hearing, the ALJ issued an unfavorable decision finding
that Claimant was not disabled. R. 15-25. Claimant sought
review of the ALJ's decision by the Appeals Council. R.
247-48. On November 2, 2018, the Appeals Council denied the
request for review. R. 1-8. Claimant now seeks review of the
final decision of the Commissioner by this Court. Doc. No. 1.
Hearing Before the ALJ.
beginning of the hearing, the ALJ asked Claimant's
counsel whether counsel and Claimant had the opportunity to
review the file, to which counsel responded affirmatively. R.
34. Counsel for Claimant stated that there were no objections
to the documents contained in the exhibit file. R. 35.
Counsel for Claimant thereafter raised the issue of
Claimant's prior closed period of disability. R. 37-39.
Counsel argued “that these conditions still persist
past '14. We still have them in '16 and '17, so
it is our contention that he is still disabled, and should be
found disabled at this point.” R. 38-39.
time of the hearing, Claimant was forty-two years old. R. 39.
He completed high school; he obtained both an associate's
and bachelor's degree in college. R. 40-41. Claimant
testified that he was not currently employed, but that he had
engaged in some work after the alleged disability onset date.
R. 41. He testified that in 2017, he worked in security at
Walt Disney World. Id. Claimant testified that he
was “let go” because he could not “meet the
demands of their hours, and even under light duty
restrictions, [he] couldn't accommodate their
requests.” Id. He worked approximately 30
hours per week. Id. Claimant later acknowledged that
he had a disciplinary history during his employment. R.
53-54. In 2014, Claimant worked fulltime doing counter sales
at O'Reilly; he also did minimal stocking. R. 42.
Claimant also has prior experience working full time
performing services related to internet, phone, and
television. R. 43. His prior work experience also included
custom closet and closet organizer installation, as well as
construction and running a remodeling business. R. 43-45.
testified that he would currently be prevented from
performing even sedentary work because he cannot sit for long
periods of time - sitting for prolonged periods causes spasms
in his back and makes it “lock up.” R. 46. He
takes medication for the muscle spasms and for pain. R. 47.
The medications impair his ability to drive. Id.
Claimant stated that he sees a doctor for pain management,
and that he also regularly visits emergency rooms due to his
back. R. 56. He also has received nerve facet injections. R.
55. Claimant uses ice and heat on his back every day. R. 57.
During the hearing, the ALJ posed the following hypothetical
question to the VE:
[P]lease assume a hypothetical individual of claimant's
age, education, and those past jobs that you've just
described. Further, assume the individual is limited to a
sedentary exertional level. No climbing ladders and
scaffolds. Occasional climbing ramps and stairs. Occasional
stooping, kneeling, crouching, and crawling. No. work at
unprotected heights. No. operating a motor vehicle. No.
exposure to extreme temperatures. Based on that hypothetical,
I assume the individual could not perform any of the past
jobs. Is that correct?
R. 61. The VE confirmed that such individual could not
perform any of Claimant's past relevant work.
Id. However, the VE testified that there were other
jobs in the national economy at the sedentary level that the
person could perform, such as addresser, call out operator,
or charge account clerk. R. 61-62. Nonetheless, if the
individual could only sit or stand for 20 minutes at a time,
sit for less than 2 hours in an 8-hour period, must walk
every 15-minutes, required a sit/stand/walk at will option,
could rarely lift more than 10 pounds per day, and would miss
more than 4 days of work per month, the VE confirmed that
there were no jobs in the national economy that the person
could perform. R. 62. The VE further confirmed that missing 4
days of work per month would preclude any job in the national
economy. R. 62-63.
The ALJ's Decision.
considering the entire record, the ALJ performed the
five-step evaluation process as set forth in 20 C.F.R. §
404.1520(a). R. 15-25. The ALJ found that Claimant met the
insured status requirements of the Social Security Act
through March 31, 2019. R. 17. The ALJ concluded that
Claimant had not engaged in substantial gainful activity from
the alleged disability onset date, November 26, 2014.
Id. The ALJ found that Claimant suffered from
the following severe impairments: degenerative disc disease
of the lumbar spine; a history of laminectomy, decompression,
and fusion procedures; degenerative joint disease of the
right knee; and a left ankle tendon injury. R. 18. The ALJ
concluded that Claimant did not have an impairment or
combination of impairments that met or equaled a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. R.
careful consideration of the entire record, the ALJ found
that Claimant had the residual functional capacity
(“RFC”) to perform sedentary work as defined in
the Social Security regulations,  with the following
[H]e can occasionally climb ramps and stairs; he can never
climb ladders and scaffolds; he can occasionally stoop,
kneel, crouch, and crawl; he can never work at unprotected
heights; he can never operate a motor vehicle; he cannot
exposure [sic] to extreme heat or cold.
R. 19. The ALJ concluded that Claimant was unable to perform
any past relevant work, which included work as a merchandise
deliverer, parts salesperson, cable television installer,
construction worker I, house repairer, or automobile
mechanic. R. 23. However, considering Claimant's age,
education, work experience, and RFC, as well as the testimony
of the VE, the ALJ concluded that there were other jobs
existing in significant numbers in the national economy that
Claimant could perform, including addresser, call out
operator, and charge account clerk. R. 24. Accordingly, the
ALJ concluded that Claimant was not disabled. R. 25.
STANDARD OF REVIEW.
having exhausted his administrative remedies, the Court has
jurisdiction to review the decision of the Commissioner
pursuant to 42 U.S.C. § 405(g), as adopted by reference
in 42 U.S.C. § 1383(c)(3). The scope of the Court's
review is limited to determining whether the Commissioner
applied the correct legal standards and whether the
Commissioner's findings of fact are supported by
substantial evidence. Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The
Commissioner's findings of fact are conclusive if they
are supported by substantial evidence, 42 U.S.C. §
405(g), which is defined as “more than ...