Cardona v. Commissioner of Social Security et al
Filing
20
OPINION AND ORDER accepting and adopting 15 Report and Recommendations; overruling 18 Objection; affirming the Decision of the Commissioner. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 3/13/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NILDA CARDONA,
Plaintiff,
v.
Case No: 2:13-cv-32-FtM-29DNF
COMMISSIONER
OF
SECURITY and SSA,
SOCIAL
Defendants.
OPINION AND ORDER
This
matter
is
before
the
Court
on
consideration
of
Magistrate Judge Douglas N. Frazier’s Report and Recommendation
(Doc. #15), filed on February 11, 2014, recommending that the
Decision of the Commissioner to deny social security benefits be
affirmed.
Plaintiff’s Objection to the Report and Recommendation
(Doc. #18) was filed on March 5, 2014, and the Commissioner’s
Response to Plaintiff’s Objections (Doc. #19) was filed on March
10, 2014.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004)(citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).
Substantial evidence is more than a scintilla
but less than a preponderance, and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)(citing
Crawford,
363
F.3d
at
1158-59).
Even
if
the
evidence
preponderates against the Commissioner’s findings, the Court must
affirm
if
evidence.
the
decision
Crawford,
reached
363
F.3d
is
at
supported
1158-59
by
substantial
(citing
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Martin
v.
The Court does
not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005)(citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)).
The Court reviews the Commissioner’s
conclusions of law under a de novo standard of review.
Comm’r
of
Soc.
Sec.
Admin.,
496
F.3d
1253,
1260
Ingram v.
(11th
Cir.
2007)(citing Martin, 894 F.2d at 1529).
(1) Failure to Call Vocational Expert At Step 4
Plaintiff asserts that the Administrative Law Judge (ALJ)
erred in failing to obtain testimony from a vocational expert at
step four of the evaluation process in order to determine whether
plaintiff had the residual functional capacity (RFC) to perform
past relevant work.
Such expert testimony was needed, plaintiff
argues, because the ALJ previously found that she had a “severe”
- 2 -
panic attack and had “moderate” limitations in concentration,
persistence, and pace, and there was no explanation how someone
with such impairments could perform her past relevant work.
(Doc.
#18, pp. 1-4.)
At Step 4 of the sequential evaluation process, a social
security
claimant
bears
the
burden
of
establishing
that
her
residual functional capacity (RFC) precludes her from returning to
her past relevant type of work.
Moore, 405 F.3d at 1213.
It is
only after a claimant establishes an inability to return to a past
relevant work that and ALJ may have a duty to call a vocational
expert (at Step 5). “The testimony of a vocational expert is only
required to determine whether the claimant's residual functional
capacity permits [her] to do other work after the claimant has met
his initial burden of showing that he cannot do past work.”
Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)(citing Chester
v. Bowen, 792 F.2d 129, 131–32 (11th Cir. 1986)).
v.
Bowen,
847
F.2d
698,
704
(11th
Cir.
See also Lamb
1988).
An
ALJ’s
determination that a claimant has the RFC to perform some of her
past relevant work is upheld if supported by substantial evidence.
Moore, 405 F.3d at 1213.
In this case, the ALJ determined plaintiff’s RFC (Tr. 17-22)
after considering all her impairments.
the
functional
demands
of
plaintiff’s
- 3 -
The ALJ then considered
past
work
as
a
sales
associate/stocker based upon her own description of the work as
she
performed
it.
(Tr.
22
and
Exh.
4E.)
Both
the
RFC
determination and the functional demands of the past work are
supported by substantial evidence.
Additionally, plaintiff’s
reliance on Step 5 cases as to the need for vocational expert
testimony is not controlling at Step 4 of the evaluation process.
Plaintiff argues, however, that the ALJ’s finding of severe
panic
attacks
and
moderate
limitations
in
concentration,
persistence, and pace are inconsistent with a finding that she can
perform past relevant work and require further explanation.
argument is without merit.
Jackson also contends that it is inconsistent
for the ALJ to find that he suffers from an
impairment which significantly limits his
ability to perform some basic work activities
and also to find that he can perform his past
relevant work.
This argument is meritless.
See Sewell v. Bowen, 792 F.2d at 1068 n.3. A
finding
of
a
severe
impairment
is
a
prerequisite to a finding of disability.
However, a severe impairment is not sufficient
for a finding of disability. The impairment
must be equal to or worse than one of the
impairments
listed
in
Appendix
1.
Alternatively, the impairment must preclude
the claimant from performing his past relevant
work or any other work available in the
national economy.
The ALJ found that
Jackson's past relevant work did not require
the types of activities which Jackson found it
difficult to perform.
Thus, it was not
inconsistent for the ALJ to find that Jackson
had significant impairment and also to find
that he could perform his past relevant type
of work.
- 4 -
This
Jackson v. Bowen, 801 F.2d 1291, 1294 (11th Cir. 1986).
So too
in this case, the ALJ’s findings at Step 4 are not inconsistent
with is prior limitations findings.
(2) RFC Opinion of Treating Physician
Plaintiff asserts that the ALJ improperly gave little weight
to the RFC opinion of Dr. Brian Martin, one of her treating
physicians.
(Doc.
#18,
pp.
5-7.)
Dr.
Martin
completed
a
checkmark form, Exhibit 10F, approximately two and one-half years
after the expiration of plaintiff’s insured status, and his opinion
was given “little weight” by the ALJ.
(Tr. 22.)
articulates
were
sufficient
reasons,
which
The ALJ
supported
substantial evidence, for discounting Dr. Martin’s opinion.
(3)
by
(Id.)
“Advanced Age” Consideration At Step 5
Having found the ALJ properly resolved the claim at Step 4 of
the evaluation process, the Court agrees with the magistrate judge
that there is no need to proceed to this Step 5 issue.
After
an
independent
review,
the
Court
agrees
with
the
findings and recommendations in the Report and Recommendation.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #15) is accepted and
adopted by the Court.
2.
Plaintiff’s Objection (Doc. #18) is overruled.
- 5 -
3.
The Decision of the Commissioner of Social Security is
affirmed.
4.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2014.
Copies:
Hon. Douglas N. Frazier
U.S. Magistrate Judge
Counsel of Record
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13th
day
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