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Campbell v. Commissioner of Social Security

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

December 2, 2019

REGINALD CAMPBELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          MARKA.P1ZZO ITED STATES MAGISTRATE JUDGE

         This is an appeal of the administrative denial of disability insurance benefits (DIB). See 42 U.S.C. § 405(g). In this appeal, Plaintiff contends the ALJ erred by relying on testimony from the vocational expert (VE) that was not supported by substantial evidence. After considering the parties' joint memorandum of law (doc. 21) and the administrative record (doc. 10), I find that the ALJ's decision is supported by substantial evidence.

         A. Background

         Plaintiff Reginald Campbell was born on December 1, 1961, and has a high school education. He alleges disability beginning December 31, 2010, through his last date insured, December 31, 2014, due to heart disease, heart attack, and two heart surgeries; bilateral broken hips and arthritic pain; severe joint, arthritic and nerve pain in right shoulder; and a skull fracture resulting in headaches and sometimes forgetfulness (R. 241). From June 1986 through July 2009, Plaintiff worked as a law enforcement officer detective; he retired to care for his mother who was very ill. Unfortunately, his mother passed away on November 6, 2010, and Plaintiff suffered a heart attack on December 31, 2010. He asserts that following his heart attack, he could no longer perform the duties of his job because the medications he took caused his body to weaken and previous injuries to flare-up causing pain that was at times unbearable (R. 242).

         After a hearing, the ALJ found that Plaintiff suffers from the severe impairments of “ischemic heart disease, coronary artery disease, myocardial infarction, mitral regurgitation, carotid atherosclerosis, hypertension, hyperlipidemia, and obesity” (R. 13). The ALJ further found 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. Part 404, Subpart P, Appendix 1 (R. 19). The ALJ determined that Plaintiff is not disabled, because he retains the RFC to perform light work with the following limitations:

… he was incapable of walking on uneven terrain; he required a sit/stand option, allowing him to shift from either sitting and standing alternatively at-will, provided he did not leave the workstation and he was not off-task more than 10% of the work period; he was capable of rarely balancing and rarely climbing stairs and ramps but required a railing or something else to hold onto; he was incapable of climbing ladders, ropers, and scaffolds and was incapable of kneeling, crouching, and crawling; he was capable of occasionally stooping; he was incapable of reaching overhead with the right upper extremity but was capable of occasionally reaching in all other directions with the right upper extremity; he was incapable of operating foot controls with the bilateral lower extremities and was incapable of operating a motor vehicle for work; he was to avoid all exposure to hazards, including unprotected heights and moving mechanical parts; he was to avoid more than occasional exposure to excessive noise such as that in a typical retail or commercial establishment; he was to avoid more than occasional exposure to vibration and bright or flashing lights; and he would have been off task up to 10% of the workday due to an inability to maintain concentration.

(R. 14). With the assistance of a vocational expert (VE), the ALJ found that, with this RFC, Plaintiff could not perform his past relevant work as a police detective or security guard, but could perform jobs existing nationally including counter clerk, DOT 249.366-010 with 300, 000 jobs in the national economy; furniture rental clerk, DOT 295.357.010 with 150, 000 jobs in the national economy; and school bus monitor, DOT 372.667-042 with 20, 000 jobs in the national economy (R. 16-18). The AC denied review. Plaintiff, after exhausting his administrative remedies, filed this action.

         B. Standard of Review

         To be entitled to DIB, a claimant must be 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 12 months.” See 42 U.S.C. § 423(d)(1)(A). A “‘physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42 U.S.C. § 423(d)(3).

         The Social Security Administration, to regularize the adjudicative process, promulgated detailed regulations. These regulations establish a “sequential evaluation process” to determine if a claimant is disabled. See 20 C.F.R. § 404.1520. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4). Under this process, the Commissioner must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits his ability to perform work-related functions); (3) whether the severe impairment meets or equals the medical criteria of Appendix 1, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner's determination of claimant's RFC, whether the claimant can perform his past relevant work; and (5) if the claimant cannot perform the tasks required of his prior work, the ALJ must decide if the claimant can do other work in the national economy in view of his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4). A claimant is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f), (g).

         In reviewing the ALJ's findings, this Court must ask if substantial evidence supports those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ's factual findings are conclusive if “substantial evidence consisting of relevant evidence as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citation and quotations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds the evidence preponderates against the ALJ's decision. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner's “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at 1066 (citations omitted).

         C. Discussion

         All of Plaintiff's issues concern errors allegedly made at step five of the sequential analysis. At step five, the Commissioner must consider the RFC assessment combined with the claimant's age, education, and work experience to determine whether the claimant can make an adjustment to other work. Philips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004); 20 C.F.R § 416.920(a)(4). Of course, if the claimant can make an adjustment to other work, a finding of not disabled is appropriate. Id. At this step, the burden temporarily shifts to the Commissioner to show other jobs exist in significant numbers in the national economy which the claimant can perform, given his impairments. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). “The ALJ must articulate specific jobs that the claimant is able to perform, and this finding must be supported by substantial evidence, not mere intuition or conjecture.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). In determining a claimant's ability to adjust to other work in the national economy, the ALJ may either apply the Medical Vocational Guidelines (“grids”) or use a VE. Phillips, supra, at 1239-40. Typically, in a case like this one, where the claimant cannot perform a full range of work at a given level of exertion or where the claimant has non-exertional impairments, the ALJ must consult a VE. Id.

         Plaintiff asserts the ALJ erred at step five by relying on testimony from the VE that was not supported by substantive evidence.[1] In particular, he raises three objections: 1) the ALJ erred by relying on the VE's testimony that there are 300, 000 counter clerk jobs as that job involves tasks related to photo film processing and the need for such services has rapidly declined during the past thirty years; 2) the ALJ erred by relying on the VE testimony regarding the job of furniture store rental clerk since the VE cited the wrong DOT code for that job; and 3) the ALJ erred by finding him capable of performing the furniture store rental clerk and school bus monitor jobs that have duties he cannot ...


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