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Graiber v. Commissioner Social Security

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

November 4, 2019

DANIEL RUSSELL GRAIBER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE.

         Daniel 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 Commissioner.

         I. PROCEDURAL HISTORY.

         On 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. 68-81.[1]

         On July 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.

         After 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.

         II. FACTUAL BACKGROUND.[2]

         A. Hearing Before the ALJ.

         At the 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.

         At the 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.

         Claimant 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.

         B. The ALJ's Decision.

         After 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.[3] 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.[4] 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. 19.

         After 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, [5] with the following limitations:

[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.

         III. STANDARD OF REVIEW.

         Claimant 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 ...


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