Benson v. Commissioner of Social Security

Filing 25

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 6/26/2015. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANICE BENSON,
Plaintiff,
v.

Case No: 2:14-cv-480-FtM-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This cause is before the Court on Plaintiff, Janice Benson’s Complaint (Doc. 1) filed on
August 20, 2014. Plaintiff, Janice Benson seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for a period of
disability, and disability insurance benefits.

The Commissioner filed the Transcript of the

proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda in support of their 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, the ALJ Decision, and Standard of Review
A. 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 in
death 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 his 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. Plaintiff bears the burden of
persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5 (1987).
B. Procedural History
On January 4, 2011, Plaintiff filed application for disability insurance benefits asserting an
onset date of December 2, 2010. (Tr. p. 67, 116). Plaintiff’s application was denied initially on
March 9, 2011, and on reconsideration May 23, 2011. (Tr. p. 67, 68). A hearing was held before
Administrative Law Judge Ronald S. Robins on October 23, 2012. (Tr. p. 43-66). The ALJ
issued a partially favorable decision on December 20, 2012. (Tr. p. 13-22). On June 17, 2014, the
Appeals Council denied Plaintiff’s request for review. (Tr. p. 1-5). Plaintiff filed a Complaint
(Doc. 1) in the United States District Court on August 20, 2014. This case is ripe for review.
The parties consented to proceed before a United States Magistrate Judge for all proceedings.
(See, Doc. 17).
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Commissioner of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) 1(citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must
determine whether the claimant (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in

Unpublished opinions may be cited as persuasive on a particular point. The Court
does not rely on unpublished opinions as precedent. Citation to unpublished opinions on or
after January 1, 2007 is expressly permitted under Rule 31.1, Fed. R. Ap. P. Unpublished
opinions may be cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R.
36-2.
1

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20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can
perform other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232,
1237-40 (11th Cir. 2004). The claimant has the burden of proof through step four and then the
burden shifts to the Commissioner at step five. Hines-Sharp v. Commissioner of Soc. Sec., 511
F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2015. (Tr. p. 15). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since her alleged onset date of December 2, 2010. (Tr. p.
15). At step two, the ALJ found that since her onset date, Plaintiff suffered from the following
severe impairments: degenerative disc disease of the lumbar and cervical spine, tendinitis in the
shoulders, status post left shoulder arthroscopy, and glenohumeral chondromalacia of the right
shoulder. (Tr. p. 15). At step three, the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
and 404.1526. (Tr. p. 15-16). At step four, the ALJ determined that prior to June 1, 2012, the date
Plaintiff became disabled, Plaintiff had the residual functional capacity (“RFC”) to perform a
reduced range of light work, such that Plaintiff was able to lift and/or carry twenty pounds
occasionally; ten pounds frequently; stand and/or walk for six hours, and sit for six hours in an
eight-hour workday;

push/pull unlimitedly; frequently climb ramps and stairs; never climb

ladders, ropes and scaffolds; frequently balance; and, occasionally stoop, kneel, crouch, and crawl.
(Tr. p. 16). The ALJ found that beginning on June 1, 2012, Plaintiff had the RFC to perform less
than a full range of sedentary work. The ALJ also found that prior to June 1, 2012, Plaintiff was
capable of performing her past relevant work as a deli worker.

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(Tr. p. 20-21).

The ALJ

determined that this work did not require the performance of work-related activities precluded by
Plaintiff’s RFC. (Tr. p. 21). The ALJ determined that prior to June 1, 2012, Plaintiff was not
disabled, however since June 1, 2012, considering Plaintiff’s age, education, work experience, and
residual functional capacity, there are no jobs that exist in significant numbers in the national
economy that Plaintiff could perform. (Tr. p. 22). The ALJ concluded that Plaintiff was not
disabled prior to June 1, 2012, but became disabled on June 1, 2012 and continues to be disabled
through the date of the Decision. (Tr. p. 22).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). 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; i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and Richardson, 402 U.S. at 401.
Where the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if
the reviewer finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account
evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery

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v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine
reasonableness of factual findings).
II. Analysis
Plaintiff raises one issue on appeal which is the ALJ erred in finding that Plaintiff had past
relevant work experience as a deli clerk. Plaintiff argues that Plaintiff’s job as a deli clerk was a
composite job combining the job of a deli clerk (DOT 2 # 316.684-014) when slicing meat, and the
job of meat clerk (DOT # 222.684-010) when bringing cases of meat weighing approximately 30
to 40 pounds from the cooler to the display, and arguably when stocking merchandise which entails
significant bending, squatting, twisting, turning, and stretching. Plaintiff asserts that when she
described her past relevant work as a deli clerk, her description contained both job descriptions,
and the ALJ erred in finding that Plaintiff was able to perform her past relevant work as a deli
clerk prior to June 1, 2012, when in fact, Plaintiff’s job was a composite job of deli clerk and meat
clerk.
The Commissioner responds that even though Plaintiff may have described her position, it
is her burden to demonstrate that she is unable to perform her past type of work, not merely that
she is unable to perform the specific job she held in the past. The Commissioner also contends that
Plaintiff’s own testimony shows that her past relevant work of deli clerk was consistent with the
DOT description of deli clerk.
A plaintiff bears the burden of showing that she can no longer perform her past relevant
work as she actually performed it, or as it is performed in the general economy. Waldrop v.
Comm’r. of Soc. Sec., 379 F. App’x. 948, 953 (11th Cir. 2010) (citing Jackson v. Bowen, 801 F.2d
1291, 1293-94 (11th Cir. 1986). Even though a plaintiff has the burden of showing she can no

2

“DOT” refers to the Dictionary of Occupational Titles, (4th ed.).

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longer perform her past relevant work, the Commissioner has the obligation to develop a full and
fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). To
develop a full and fair record, an ALJ must consider all of the duties of that past relevant work and
evaluate a plaintiff’s ability to perform the past relevant work in spite of the impairments. Levie
v. Comm’r of Soc. Sec., 514 F. App’x. 829, 831 (11th Cir. 2013). SSR 82-62 requires the ALJ to
make the
following specific findings of fact: 1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past
job/occupation. 3. A finding of fact that the individual's RFC would permit a return
to his or her past job or occupation.
SSR 82-62, 1982 WL 31386 *4 (1982). 3 A plaintiff is the primary source for vocational
documents, and “statements by the claimant regarding past work are generally sufficient
for determining the skill level; exertional demands and nonexertional demands of such
work.” Id. at *3. A composite job is “one that has significant elements of two or more
occupations and, as such, has no counterpart in the DOT. Paxton v. Colvin, 2013 WL
1909609, *4 (M.D. Fla. May 8, 2013).
The ALJ relied on the vocational expert (“VE”) to determine that based upon Plaintiff’s
RFC, Plaintiff was able to perform the job of deli worker (DOT # 316.684-014) prior to June 1,
2012. (Tr. p. 21). The ALJ compared Plaintiff’s RFC with the physical and mental demands of
deli worker, and found that Plaintiff was able to perform the job as generally performed. (Tr. p.
21). Plaintiff testified at the hearing that she performed past relevant work as a deli clerk. (Tr. p.

3 “Social

Security Rulings are agency rulings published under the Commissioner’s
authority and are binding on all components of the Administration. [citation omitted]. Even
though the rulings are not binding on us, we should nonetheless accord the rulings great respect
and deference . . .” Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010).

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59). The VE found deli worker under DOT # 316.684-014, light level and SVP 2. (Tr. p. 60). The
VE described the job duties of a deli worker as someone who cuts meats and cheeses using a slicing
machine, knives, or other cutters. (Tr. p. 62). The VE testified that a deli worker places meat or
cheese on a cutting board, and cuts slices to a designated thickness using knives, or other hand
cutters, positions and clamps meat or cheese on a carriage of a slicing machine, adjusts knobs on
the machine, presses a button to start the motor, moves the carriage past rotary blades that slice
meats and cheeses, stacks cut pieces on a tray or platter, weighs and wraps the sliced food, and
affixes a sticker showing the price and weight. (Tr. p. 62). The VE testified that a deli worker
waits on customers, and also goes to a cooler to replenish meats and cheeses and cleans the cutting
and slicing machines.

(Tr. p. 63). Plaintiff testified that in her job as deli clerk, she was

responsible for going to the cooler and bringing cases of meat out to the front. (Tr. p. 64).
Plaintiff testified that the containers of meat weigh approximately 10 pounds separately, but the
box of meat contains 3 to 4 containers of meat making the box weigh approximately 30 to 40
pounds. (Tr. p. 64). Plaintiff agreed that the rest of the description by the VE was “pretty much
similar” to her deli clerk job. (Tr. p. 65).
Plaintiff bears the burden of showing that she cannot return to her past relevant work as
she performed it and as it is performed in the general economy. Waldrop v. Comm’r of Soc. Sec.,
379 F. App’x 948, 953 (11th Cir. 2010). Plaintiff also bears the burden of showing that her past
relevant work is not the work the ALJ found to be her past relevant work. Id. Plaintiff argues that
when she worked as a deli clerk, she carried 30 to 40 pounds of meat to the deli case to merchandise
it and replenish the stock. Plaintiff argues that this requirement of carrying 30 to 40 pounds of
meat to replenish the front case is a requirement of a meat clerk (DOT # 222.684-010), and
therefore Plaintiff worked a composite job of deli clerk and meat clerk. The DOT provides that a

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meat clerk DOT # 222.684-010 unloads fresh, cured, and boxed meats and poultry from a delivery
truck and then transports these meats to a storage room. Plaintiff failed to show that she unloaded
trucks with meat and transported these meats to the storage cooler. Rather, Plaintiff testified that
she went to the cooler and removed meats to display them. The VE testified that Plaintiff was able
to perform the job of deli worker as generally performed in the national economy. The VE testified
as to the job duties of a deli clerk as generally performed in the national economy, and determined
that Plaintiff was able to perform the duties of a deli clerk, DOT # 316.682-014. The ALJ
accepted the VE’s testimony. Plaintiff failed to meet her burden of showing that her past relevant
work was not as a deli clerk, and that prior to June 1, 2012, she was unable to perform the job of
deli clerk as generally performed in the national economy. Therefore, the Court finds that the
ALJ did not err in determining that Plaintiff could return to her past relevant work prior to June 1,
2012.
IV. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.

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DONE and ORDERED in Fort Myers, Florida on June 26, 2015, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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