Devigili v. Commissioner of Social Security

Filing 25

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 3/11/2016. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID DEVIGILI,
Plaintiff,
v.

Case No: 2:15-cv-92-FtM-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, David Devigili, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his 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 legal memoranda in support of their positions.
For the reasons set out herein, the decision of the Commissioner is REVERSED AND
REMANDED 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 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.
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 he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he 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 his 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 his 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 he meets this burden, he 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 his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his 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 his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he 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). If
the claimant is capable of performing other work, he 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,

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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. 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 he 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 in October 2011, alleging
disability beginning in January 2011. (Tr. 215-16, 217-22). Plaintiff’s applications were denied
initially on January 24, 2012, and on reconsideration on February 16, 2012. (Tr. 127, 132, 141,
146). A hearing was held before Administrative Law Judge Roxanne Fuller (the “ALJ”) on August
12, 2013. (Tr. 37-65). On August 30, 2013, the ALJ issued her decision finding that Plaintiff was
not under a disability from January 3, 2011, through the date of the decision. (Tr. 13-26). Plaintiff
appealed the ALJ’s decision and the Appeals Council denied Plaintiff’s request for review on
January 14, 2015. (Tr. 1). Plaintiff initiated the instant action by filing a Complaint (Doc. 1) on
February 11, 2015. The parties having filed memorandum in support of their 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 January 3, 2011, the alleged onset date. (Tr. 15). At step two,
the ALJ found that Plaintiff had the following severe impairments: intertrochanteric fracture of
the right hip, partial hearing loss, vision impairment, attention deficit hyperactive disorder
(ADHD), post-traumatic stress disorder (PTSD), and anxiety. (Tr. 15). At step three, the ALJ

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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. 16).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to:
perform a range of light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: occasional climbing ramps or stairs; occasional
climbing ladders, ropes or scaffolds; occasional balancing, stooping,
crouching, kneeling, and crawling; occasional exposure to excessive
noise; occasional exposure to moving mechanical parts; occasional
operating a motor vehicle; occasional exposure to unprotected heights;
limited to occupations requiring only occasional far acuity; able to
perform simple, routine and repetitive tasks; able to work in a low stress
job, defined as having only occasional changes in the work setting; no
interaction with the public; only occasional superficial interaction with coworkers and supervisors.
(Tr. 17-18). At step four, the ALJ found that Plaintiff was unable to perform his past relevant work
as a branch manager, infantry crew member, air conditioning servicer, and construction laborer.
(Tr. 24). At step five, the ALJ relied on the testimony of a vocational expert to find that given
Plaintiff’s age, education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform, specifically the
occupations of housekeeping cleaner, silver wrapper, and office helper. (Tr. 24). The ALJ
concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from
January 3, 2011, through the date of the decision, August 30, 2013. (Tr. 25-26).
II.

Analysis
Plaintiff raises six issues on appeal. As set forth in Plaintiff’s brief, they are: (1) the

Appeals Council improperly treated social worker Aleta Fox’s opinion as new evidence and
improperly applied the “weight of the evidence” standard when considering this evidence, an error

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of law requiring reversal of the Appeals Council’s denial of review; (2) the ALJ failed to consider
social worker Aleta Fox’s opinion, an error of law requiring reversal and, in light of Ms. Fox’s
opinion, the ALJ’s decision is not supported by substantial evidence; (3) the Appeals Council’s
denial of review is unsupported by substantial evidence, requiring reversal; (4) the ALJ’s refusal
to consider the VA disability finding was reversible legal error; (5) the vocational expert’s
testimony is inconsistent with the DOT and cannot support a finding of non-disability; and (6) the
ALJ’s finding that a moderate limitation in concentration, persistence, or pace only limits Plaintiff
to simple, routine, repetitive tasks is contrary to Eleventh Circuit cases holding a limitation to
simple, routine, repetitive tasks does not adequately account for limitations in concentration,
persistence, or pace.
The Court begins with Plaintiff’s arguments concerning the treatment of the evidence
submitted by Plaintiff after the administrative hearing but before entry of the ALJ’s decision, i.e.,
the opinion evidence from Plaintiff’s social worker, Aleta J. Fox, LCSW. Plaintiff argues that the
Appeals Council erred by improperly treating this evidence as “new” evidence and by applying an
improper legal standard in denying Plaintiff’s request for review. Plaintiff also contends that the
ALJ erred by failing to consider this evidence before entering her decision denying Plaintiff
benefits. Defendant responds that the Appeals Council applied the correct legal standard in
denying review of the ALJ’s decision and that substantial evidence supports the ALJ’s decision,
even in light of Ms. Fox’s opinion.
The record indicates that Plaintiff submitted Ms. Fox’s opinion to the ALJ on October 28,
2013, just sixteen days after the administrative hearing, and two days before the exceptionally
speedy entry of the ALJ’s decision on August 30, 2013. The document is not listed as an exhibit
the ALJ reviewed in her deliberations nor is Ms. Fox’s opinion mentioned in the ALJ’s decision.

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As acknowledged by Defendant, the ALJ apparently never actually reviewed the evidence as it
was submitted so close in time to the date of the ALJ’s decision.
Defendant contends reversal is not required by the mere fact that the ALJ did not review
or assign weigh to an opinion submitted on the eve of her decision, as the agency routinely
accomplishes review of evidence received post-hearing through the Appeals Council. (Doc. 20 p.
7). According to Defendant, Ms. Fox’s opinion was “new” in the sense that the agency had not
considered it until it came to the Appeals Council’s attention, and that the Appeals Council was
not required to discuss Ms. Fox’s opinion in any detail. (Doc. 20 p. 7) (citing Mitchell v. Comm’r
of Soc. Sec., 771 F.3d 780, 783-85 (11th Cir. 2014).
The Court rejects these contentions.

The determination of a claimant’s RFC is an

administrative determination that is reserved to the ALJ at the hearing level. See 20 C.F.R. §§
404.1546(c), 416.946(c); Social Security Ruling (SSR) 96-5p. An ALJ must determine the
Plaintiff’s RFC using all of the relevant medical and other evidence in the record. Phillips v.
Barnhart, 357 F.3d 1232, 1238-39 (11th Cir. 2004); 20 C.F.R. §404.1520(e) (emphasis added).
In this case, the ALJ’s decision was not based on all of the relevant evidence of record at
the time she entered her decision. Accordingly, the Court finds that the ALJ erred and will remand
for the evidence from Ms. Fox to be considered. While Defendant claims that the ALJ’s failure to
review Ms. Fox’s opinion was cured by the Appeals Council’s subsequent review, Defendant cites
to no authority supporting its claim that evidence is “new” by the fact that the ALJ did not consider
it at the hearing level. While the timeline of this case makes the ALJ’s failure to consider Ms.
Fox’s opinion understandable, it does not change the fact that a piece of evidence properly in the
record was not considered as required by law. Accordingly, the Court finds it appropriate to
remand this with instructions for the ALJ to properly consider the opinion of Ms. Fox.

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As the ALJ’s consideration of Ms. Fox’s opinion may alter his RFC finding, the Court
defers from addressing the remaining issues raised by Plaintiff.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on March 11, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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