Townley v. Berryhill

• Decision Date: 20 September 2017
• Docket Number: Case No: 8:16-cv-1578-T-DNF
• Court: U.S. District Court — Middle District of Florida
• Parties: LISA RENEE TOWNLEY, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

LISA RENEE TOWNLEY, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.¹

Case No: 8:16-cv-1578-T-DNF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

September 20, 2017

OPINION AND ORDER

Plaintiff, Lisa Renee Townley, seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying her claim for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as "Tr." followed by the appropriate page number), and the parties filed memoranda setting forth their respective positions. 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, Standard of Review, Procedural History, and the ALJ's Decision

A. Social Security Act Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result indeath or which 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), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.

B. Standard of Review

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 and is such relevant evidence as a reasonable person would accept as adequate support to a conclusion. Even if the evidence preponderated against the Commissioner's findings, we must affirm if the decision reached is supported by substantial evidence." Crawford v. Comm'r, 363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894 F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However, the District Court will reverse the Commissioner's decision on plenary review if the decision applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). The Court reviews de novo the conclusions of law made by the Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42 U.S.C. § 405(g).

The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. At step one, the claimant must prove that she is not undertaking substantial gainful employment. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found not disabled. 20 C.F.R. § 404.1520(a)(4)(i).

At step two, the claimant must prove that she is suffering from a severe impairment or combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the claimant's impairment or combination of impairments does not significantly limit her physical or mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and the claimant will be found not disabled. 20 C.F.R. § 1520(c).

At step three, the claimant must prove that her impairment meets or equals one of impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of age, education and work experience. Doughty, 245 F.3d at 1278.

At step four, if the claimant cannot prove that her impairment meets or equals one of the impairments listed in Appendix 1, she must prove that her impairment prevents her from performing her past relevant work. Id. At this step, the ALJ will consider the claimant's RFC and compare it with the physical and mental demands of her past relevant work. 20 C.F.R. § 1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then she will not be found disabled. Id.

At step five, the burden shifts to the Commissioner to prove that the claimant is capable of performing other work available in the national economy, considering the claimant's RFC, age, education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). Ifthe claimant is capable of performing other work, she will be found not disabled. Id. In determining whether the Commissioner has met this burden, the ALJ must develop a full and fair record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The first is by applying the Medical Vocational Guidelines ("the Grids"), and the second is by the use of a vocational expert ("VE"). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the Commissioner meets this burden does the burden shift back to the claimant to show that she is not capable of performing the "other work" as set forth by the Commissioner. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).

C. Procedural History

Plaintiff filed applications for a period of disability, DIB, and SSI on April 22, 2013, alleging a disability onset date of February 11, 2013. (Tr. 83, 193-200). Plaintiff's applications were denied initially and on reconsideration. (Tr.108-118, 124-28, 133-37). Plaintiff requested a hearing and one was held before Administrative Law Judge Dores D. McDonnel, Sr. ("the ALJ") on December 16, 2014. (Tr. 43-68). On February 10, 2015, the ALJ entered a decision finding that Plaintiff was not disabled. (Tr. 28-38). Plaintiff requested review of this decision and the Appeals Council denied Plaintiff's request on May 25, 2016. (Tr. 3-5). Plaintiff initiated the instant action by Complaint (Doc. 1) on June 15, 2016. The parties having filed memoranda setting forth their respective positions, this case is ripe for review.

D. Summary of the ALJ's Decision

At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 11, 2013, the alleged onset date. (Tr. 30). At step two, the ALJ found that Plaintiff had the following severe impairments: fractures of left leg and leftarm, statu-post open reduction internal fixation. (Tr. 30). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 32).

Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to

lift and carry 25 pounds occasionally and 10 pounds frequently; stand or walk 6 hours and sit 6 hours in an 8-hour workday. She has no limitations in pushing or pulling with hand or foot controls. She has no manipulative, visual, communicative, postural or environmental limitations, except for avoidance of ropes, ladders, scaffolds and unprotected heights. She can hear, understand, learn, remember and carry out simple repetitive work instructions, make basic work decisions, adapt to a work setting, respond appropriately to supervision and can interact appropriately with coworkers, supervisors and the public. She can sustain attention/concentration sufficiently to complete an 8-hour workday and 5-day workweek. She can use public transportation; and, can be aware of common hazards in the workplace and take appropriate precautions 20 C.F.R. 404.1567(b) and 416.967(b).

(Tr. 33). At step four, the ALJ found that Plaintiff had no past relevant work. (Tr. 36).

At step five, the ALJ applied the Grids to find that considering Plaintiff's age, education, work experience and RFC, there are jobs that exist in significant numbers in the national economy Plaintiff can perform. (Tr. 37). Specifically, the ALJ applied Grid 202.17, which provides that a claimant with a RFC to perform the full range of light work requires a finding of "not disabled." (Tr. 37). The ALJ explained that the additional limitations contained in Plaintiff's RFC have little or no effect on the occupational base for unskilled light work. (Tr. 37). The ALJ concluded that Plaintiff was not under a disability from February 11, 2013, through the date of the decision. (Tr. 37).

II. Analysis

Plaintiff raises four issues on appeal: (1) whether the ALJ erred at step two by failing to include all of Plaintiff's severe impairments; (2) whether the ALJ erred in his RFC finding; (3) whether the ALJ erred by failing to find that Plaintiff had past relevant work; and (4) whether the ALJ erred by applying the Grids and failing to elicit testimony from a vocational expert at step five. The Court will address each issue in turn.

A) Whether the ALJ erred at step two by failing to include all of Plaintiff's severe impairments.

Plaintiff argues that the ALJ erred at step two by failing to include as severe impairments conditions relating to her right knee, left knee, right shoulder, and depression and anxiety. Plaintiff contends that her conditions caused more than slight limitations of function and should have been found to be severe impairments at step two. (Doc. 13 p....