Finnie v. Berryhill

          FINAL REPORT AND RECOMMENDATION ON AN APPEAL FROM A SOCIAL SECURITY DISABILITY ACTION

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks Title XVI Supplemental Security Income (“SSI”) under the Social Security Act (“the Act”), alleging disability due to blindness in his left eye, a bullet in his spine, a right hand injury, heart disease, chronic back pain, numbness in his arms and fingers, and high blood pressure. (Transcript (“Tr.”) 310). Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”), who denied Plaintiff's claim.

         Plaintiff protectively filed an application for SSI on May 3, 2011, alleging disability beginning on January 2, 2010. (Tr. 13). After that application was denied initially and on reconsideration, Plaintiff appealed to an Administrative Law Judge (“ALJ”), who denied Plaintiff's claim on March 23, 2013, finding Plaintiff was not disabled. (Tr. 20, 80-90). Plaintiff appealed the ALJ's decision to the Appeals Council (“AC”), which remanded the case for further action. (Tr. 96-99). The ALJ held another hearing on July 24, 2014. (Tr. 20, 41-72). After the hearing, the ALJ issued a partially favorable decision on November 21, 2014, finding Plaintiff was disabled beginning on November 17, 2012, ^[2] but not before that date. (Tr. 20-33). Plaintiff filed a request for review, which the AC denied on May 25, 2016, rendering the ALJ's decision final. (Tr. 5-10). Plaintiff then appealed the decision to this Court. (Doc. 4). This case is now before the undersigned upon the administrative record and the parties' pleadings and briefs, and is ripe for review pursuant to 42 U.S.C. § 405(g).

         For the reasons set forth below, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED, and this action be DISMISSED WITH PREJUDICE.

         I. STANDARD FOR DETERMINING DISABILITY

         An individual is considered to be disabled for purposes of disability benefits if he or she 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 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities that are demonstrable by medically accepted clinical or laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do his or her previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3).

         The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983). The claimant bears the initial burden of establishing the existence of a “disability” by demonstrating that he or she is unable to perform his or her former type of work. Id. Once the claimant has met this burden, the burden shifts to the Commissioner to show that, considering the claimant's age, education, work experience and impairment, there are some other types of jobs that exist in the national economy that the claimant can perform. Id. The overall burden, however, rests upon the claimant to prove that he or she is unable to engage in any substantial gainful activity that exists in the national economy. Id. As summarized below, a five-step sequential analysis must be used when evaluating a disability claim.

(1) The Commissioner must determine whether the claimant is currently working; if so, the claim is denied.

(2) The Commissioner must determine whether the claimed impairment is severe; that is, whether the impairment or combination of impairments significantly limits the claimant's physical or mental ability to do basic work activities; if not, the claim is denied.

(3) The Commissioner must determine whether the impairment equals or exceeds in severity certain impairments described in the impairment listings in the regulations; if it does, the claimant is automatically entitled to disability benefits.

(4) The Commissioner must determine whether the claimant has sufficient residual functional capacity to perform past work; if so, the claim is denied.

(5) The Commissioner must determine, on the basis of the claimant's age, education, work experience, and residual functional capacity, whether the claimant can perform any other gainful and substantial work within the economy; if so, the claim is denied.

See 20 C.F.R. §§ 404.1520-404.1576.

         II. FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE ALJ

         The ALJ made the following findings of fact and conclusions of law:

(1) The claimant has not engaged in substantial gainful activity since the alleged onset date (20 C.F.R. §§ 416.971 et. seq.).

(2) Since the alleged onset date of disability, January 2, 2010, the claimant has had the following severe impairments: gastroesophageal reflux disease (“GERD”); blind in the left eye, spondylosis, degenerative disc disease, polysubstance abuse in early remission, and major depressive disorder (20 C.F.R. § 416.920(c)).

(3) Since the alleged onset date of disability, January 2, 2010, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926).

(4) Since January 2, 2010, the claimant has the residual functional capacity (“RFC”) to perform less than a full range of work as defined in 20 C.F.R. § 416.967(b). The claimant can lift and carry twenty pounds occasionally and ten pounds frequently. The claimant can sit and stand for six hours out of an eight-hour workday with normal breaks. The claimant can perform occasional to never pushing and pulling with the right upper extremity. The claimant can perform occasional foot controls with the right lower extremity. The claimant can never climb ladders, ropes, or scaffolds. The claimant is able to occasionally climb ramps or stairs. The claimant is able to occasionally balance, kneel, crawl, stoop, and crouch. The claimant can perform work that does not require repetitive rotation with his neck. The claimant is able to occasionally reach overhead with the right extremity with the assistance of his left extremity, but can frequently handle and finger objects with the right upper extremity. The claimant should avoid concentrated exposure to extreme vibrations, hazardous machinery, unprotected heights, and operational control of moving machinery that would require the use of the right upper extremity. The claimant is also limited to occupations that do not require sight of the left eye. The claimant is limited in his ability to use fine detailed vision in the right eye. The claimant can perform work that is limited to simple, routine, and repetitive tasks or instructions. The job must be with occasional decision making and few changes in the work setting and not at productions pace. The claimant can have occasional interaction with the general public, co-workers, or supervisors. The claimant would also be off task three percent of the time.

(5) Since January 2, 2010, the claimant has been unable to perform any past relevant work (20 C.F.R. § 416.965).

(6) Prior to the established disability onset date, the claimant was an individual closely approaching advanced age. On November 17, 2012, the claimant's age category changed to an individual of advanced age (20 C.F.R. § 416.963).

(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).

(8) Prior to November 17, 2012, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled” whether or not claimant has transferable job skills. Beginning on November 17, 2012, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41, 20 C.F.R. pt. 404, subpt. P, app. 2).

(9) Prior to November 17, 2012, the date the claimant's age category changed, considering the claimant's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 416.969 and 416.969(a).

(10) Beginning on November 17, 2012, the date the claimant's age category changed, considering the claimant's age, education, work experience, and RFC, there are no jobs that exist in significant numbers in the national economy that claimant ...