Clark v. Commissioner of Social Security
Filing
31
OPINION AND ORDER adopting 25 Report and Recommendations except for the harmless error finding at step 5 and the weight given to Dr. Kelly's "marked limitations maintaining attention" opinion; overruling objections in part and su staining in part; affirming in part and reversing in part the Decision of the Commissioner. The case is remanded to the Commissioner pursuant to sentence four as set forth in the Opinion and Order. The Clerk shall enter judgment, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 3/8/2019. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMANDA CHRISTINE CLARK,
Plaintiff,
v.
Case No:
COMMISSIONER
SECURITY,
OF
2:17-cv-501-FtM-99DNF
SOCIAL
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of a Report
and
Recommendation
(Doc.
#25)
filed
on
January
11,
2019,
recommending that the Decision of the Commissioner be affirmed.
Plaintiff filed Objections to the United States Magistrate Judge’s
Report and Recommendation (Doc. #26) on January 25, 2019, and the
Commissioner was allowed to file a belated Response to Plaintiff’s
Objections (Doc. #29) on February 15, 2019.
For the reasons set
forth below, the objections are overruled in part and sustained in
part.
The Decision of the Commissioner is affirmed in part,
reversed in part, and remanded with instructions.
I.
On October 15, 2010, Plaintiff filed an application for
disability insurance benefits (DIB) alleging her disability began
on October 13, 2010. Plaintiff’s claim was denied initially, upon
reconsideration, and after a hearing before Administrative Law
Judge (ALJ) M. Dwight Evans.
On June 26, 2015, the Appeals Council
granted Plaintiff’s request for review and remanded the case for
further proceedings.
After an administrative hearing on remand, ALJ Maria C.
Northington found Plaintiff was not disabled.
Applying the five-
step sequential process, the ALJ determined as follows: At step
one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity from October 13, 2010 until 2014, but did engage
in substantial gainful activity from 2014 until 2015.
Despite
this finding, the ALJ continued with the sequential evaluation
process.
At step two, the ALJ found Plaintiff had the following
severe impairments: lumbar degenerative disc disease with remote
status-post
depression;
microdiscectomy
anxiety;
insufficiency;
and
decompression;
intellectual
obesity.
At
lumbar
deficits;
step
three,
spondylosis;
chronic
the
venous
ALJ
found
Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
- 2 -
The ALJ
determined Plaintiff had the residual functional capacity (RFC) to
perform
“a
limited
range
of
light
work”
with
the
following
limitations:
[Plaintiff has] the ability to occasionally
lift and/or carry up to 20 pounds occasionally
as defined in the regulations, as well as,
lift/carry 10 pounds frequently . . . The
claimant has no limits for sitting in an
eight-hour workday. She is capable of standing
and/or walking for up to four hours in an
eight-hour workday. In the course of work, she
should be allowed the ability to optionally
alternate between sitting and standing about
every 30 to 60 minutes, but such would not
cause her to be off-task nor would it cause
her to leave the workstation. She is able to
perform occasional postural functions of
climbing ramps/stairs and stooping. She is to
perform
no
crawling,
no
crouching,
no
kneeling,
and
no
climbing
of
ladders/ropes/scaffolds. Secondary to her
mental impairments, she retains the capacity
to understand, remember and carryout simple
instructions and perform simple routine tasks
as consistent with unskilled work.
(Doc. #17-2, Tr. 30.)
At step four, the ALJ determined Plaintiff
was able to perform her past relevant work as a “Cashier 2 (DOT
#211.462-010; light; SVP 2).”
(Id. Tr. 40.) While this normally
would result in a non-disability finding, the ALJ continued with
the evaluation process.
The ALJ found alternatively at step five
that, even if plaintiff was prevented by her impairments from
performing her past relevant work, the Commissioner had shown there
were a significant number of jobs in the national economy Plaintiff
could perform (i.e., ticket taker, call-out operator, and charge
- 3 -
account
clerk).
Thus,
the
ALJ
concluded
Plaintiff
was
not
disabled from October 13, 2010 through the date of the Decision.
The Appeals Council denied Plaintiff’s request for review on
July 18, 2017, and Plaintiff subsequently filed a Complaint with
this Court. (Doc. 1.)
II.
Plaintiff raised five issues before the district court:
whether
substantial
evidence
supports
the
ALJ’s
(1)
finding
that
Plaintiff engaged in substantial gainful activity from 2014 to
2015; (2) whether the ALJ properly weighed the opinion of the
medical expert Ronald Kendrick, M.D.; (3) whether the ALJ properly
weighed
the
opinion
of
psychological
Psy.D.;
(4)
whether
substantial
consultant
evidence
Nancy
supports
the
Kelly,
ALJ’s
finding that Plaintiff could perform her past relevant work; and
(5) whether substantial evidence supports the ALJ’s finding that
Plaintiff
could
perform
a
significant
number
of
jobs
in
the
national economy.
After review of the administrative record, the magistrate
judge found:
(1) substantial evidence supported the finding that
plaintiff engaged in substantial gainful activity as a cashier
from 2014 to 2015 because plaintiff failed to rebut the presumption
created by her income for those periods (or alternatively, that
any error in the finding was harmless because the ALJ continued
- 4 -
with the remaining steps in the evaluation process); (2) the ALJ
thoroughly
explained
the
reasons
for
assigning
only
moderate
weight to Dr. Kendrick’s opinion and properly rejected the portion
of his opinion which limited plaintiff to sedentary work; (3) the
ALJ thoroughly explained the reasons for assigning only some weight
to Dr. Kelly’s opinion concerning plaintiff’s mental condition;
(4) the ALJ erred in finding plaintiff could perform her past
relevant work as a cashier despite her impairments; and (5) the
step 4 error was harmless because the ALJ had proceeded to step
five, and substantial evidence supported the ALJ’s step five
finding that plaintiff could perform work as a ticket taker (but
not as a call-out operator or charge account clerk) which existed
in significant numbers in the national economy.
Plaintiff has filed Objections (Doc. #26) to the Report and
Recommendation.
five
harmless
Plaintiff’s primary objection relates to the step
error
determination
and
the
magistrate
judge’s
finding that there were a significant number of jobs in the
national economy which plaintiff could perform even when only the
ticket taker job is considered.
Plaintiff also objects to the
magistrate judge’s recommended affirmance of the ALJ’s findings
regarding substantial gainful activity in 2014-2015, the ALJ’s
treatment of Dr. Kendrick’s opinion, and the ALJ’s treatment of
Dr. Kelly’s opinion.
- 5 -
III.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
636(b)(1).
28 U.S.C. §
A district judge “shall make a de novo determination
of those portions of the report or specified proposed findings or
recommendations
to
which
objection
is
made.”
28
U.S.C.
§
636(b)(1)(C).
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.
Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1358 (11th Cir.
2018);
Moore
v.
Barnhart,
405
F.3d
1208,
2005)(citing Crawford, 363 F.3d at 1158-59).
1211
(11th
Cir.
Even if the evidence
preponderates against the Commissioner’s findings, the Court must
affirm
if
evidence.
the
decision
Crawford,
363
reached
F.3d
is
at
supported
1158-59
by
(citing
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
substantial
Martin
v.
The Court does
not decide facts anew, make credibility judgments, reweigh the
- 6 -
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).
IV.
The Court addresses the objections raised by plaintiff in the
order they are asserted.
A. Step Five: Significant Number of Jobs
“Put simply, the critical inquiry at step five is whether
jobs exist in the national economy in significant numbers that the
claimant could perform in spite of his impairments, and the ALJ
can consider both jobs data drawn from the DOT as well as from the
testimony of the VE in making this determination.”
906 F.3d at 1360.
Washington,
Whether there are a significant number of jobs
in the national economy is a question of fact for an ALJ to
determine.
Allen v. Bowen, 816 F.2d 600, 603 (11th Cir. 1987);
Atha v. Comm'r, Soc. Sec. Admin., 616 F. App’x 931, 934 (11th Cir.
2015); Brooks v. Barnhart, 133 F. App’x 669, 670–71 (11th Cir.
2005)(“The ALJ, relying on the VE's testimony, and not the VE,
- 7 -
determines
whether
a
specific
number
of
jobs
constitutes
a
significant number.”)(citations omitted).
The ALJ stated that the vocational expert testified that with
the additional limitations as found by the ALJ, plaintiff could
perform the jobs of ticket taker (10,000 jobs nationally; light),
call-out
operator
(19,000
nationally;
sedentary),
account clerk (7,500 nationally; sedentary).
41.)
and
charge
(Doc. #17-2, Tr.
The ALJ noted the availability of the sedentary jobs which
would “allow for any restrictive limitations that are alleged by
the claimant.” (Doc. #17-2, Tr. 41-42.)
The ALJ concluded:
Based on the testimony of the vocational
expert,
the
undersigned
concludes
that,
considering the claimant's age, education,
work experience, and residual functional
capacity, the claimant is capable of making a
successful adjustment to other work that
exists in significant numbers in the national
economy.
(Id., Tr. 42.)
As the magistrate judge correctly found, however, the ALJ
misstated the vocational expert’s testimony, and only the ticket
taker job could be performed by plaintiff. 1
1
The magistrate judge
While the Commissioner argues in its Response that the ALJ
did not misstate the testimony, and that plaintiff was able to
perform all three jobs, the Commissioner failed to file an
objection to the Report and Recommendation.
Accordingly, the
Commissioner has forfeited her right to obtain de novo review of
that finding under 28 U.S.C. § 636(b)(1)(C). In any event, a de
novo review confirms the accuracy of the magistrate judge’s
- 8 -
found this error was harmless because there were 10,000 such jobs
available, which still constituted a significant number of jobs in
the national economy, citing Brooks v. Barnhart, 133 F. App'x 669,
671 (11th Cir. 2005)(840 jobs in national economy constituted
significant number of jobs).
Plaintiff
agrees
that
only
the
ticket
taker
job
may
be
considered, but objects to the harmless error finding by the
magistrate judge.
Plaintiff argues that the error cannot be
harmless because the ALJ made no factual finding at all on this
precise
issue.
Rather,
plaintiff
argues
the
case
should
be
remanded for the ALJ to decide in the first instance whether 10,000
ticket taker jobs is a significant number of jobs in the national
economy given her individual circumstances.
A factual error by an ALJ can sometimes be subject to a
harmless error analysis.
See Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983) (incorrect factual finding was harmless error
because
correct
findings);
finding
Reeves
1984)(erroneous
v.
would
not
contradict
Heckler,
734
F.2d
factual
statement
519,
harmless
ALJ’s
524
error
ultimate
(11th
where
Cir.
ALJ
actually considered the proper medical evidence); Chiappini v.
Comm'r of Soc. Sec., 737 F. App’x 525, 528 (11th Cir. 2018).
findings.
- 9 -
Here,
the ALJ erred as to plaintiff’s ability to perform two of the three
jobs, and made no findings at all regarding the sufficiency of the
number of ticket taker jobs standing alone.
The Court is persuaded
by Randazzo v. Berryhill, 725 F. App’x 446, 448 (9th Cir. 2017),
which found harmless error did not apply because “10,000 electrical
accessories assembler jobs found by the expert may not amount to
a significant number of jobs in the national economy.”
This is
particularly so in this case, where the ALJ seemed to take some
comfort in the availability of the two sedentary jobs which were
erroneously considered.
A remand is necessary in order for the
ALJ to make a factual finding as to whether the ticket taker job,
standing alone, constitute a significant number of jobs in the
national economy after considering the claimant's age, education,
work experience, and residual functional capacity.
Plaintiff’s
objection is sustained, and the issue will be remanded to the
Commissioner.
B. Step One:
Substantial Gainful Activity (SGA)
At the August 17, 2016 hearing, plaintiff testified that in
2014-15 she would be paid the same every two weeks, even when she
missed four or five days of work a month.
Plaintiff did not know
why, but assumed it was because the owner felt sorry for her.
(Doc. #17-3, Tr. 139.)
At step one the ALJ found, without
discussing or discounting plaintiff’s testimony about the four or
- 10 -
five days off each month, that plaintiff had engaged in substantial
gainful activity (SGA) during this time period based upon her
income levels.
The
(Doc. #17-2, Tr. 24-25.)
Magistrate
Judge
found
that
without
corroborating
evidence plaintiff could not rebut the presumption of substantial
gainful
activity
credibility
created
finding
was
by
her
income
necessary
as
levels,
to
and
the
that
missed
no
work.
Alternatively, the Magistrate Judge found any error in such a
finding at step one was harmless because the ALJ only found SGA
for
one
year,
did
not
find
that
plaintiff
was
performing
substantial gainful activity at the time of the hearing, and did
not stop the evaluation process at step one.
Plaintiff objects, and argues that the ALJ was required to
address this aspect of plaintiff’s testimony, but erroneously
failed
to
do
so.
Plaintiff
argues
that
a
credibility
determination was necessary because there was no evidence to
discredit her testimony, and the ALJ was required to address this
testimony before she could determine whether the work in 2014-15
was SGA.
Plaintiff relies upon Tieniber v. Heckler, 720 F.2d 1251
(11th Cir. 1983), which held:
Where, as in the instant case, an agency's
credibility determination is crucial to the
reviewing
court's
conclusion
under
the
substantial evidence test, the ALJ must have
made a sufficient finding as to the witness'
credibility. . . . Thus, where proof of a
- 11 -
disability is based upon subjective evidence
and a credibility determination is, therefore,
a critical factor in the Secretary's decision,
the ALJ must either explicitly discredit such
testimony or the implication must be so clear
as to amount to a specific credibility
finding.
Tieniber, 720 F.2d at 1254-55.
Plaintiff argues that because the
ALJ failed to address plaintiff’s testimony about missing work
four to five days a month, the ALJ improperly found that the work
in 2014-15 crossed the SGA threshold.
The ALJ’s step one determination did not challenge or conflict
with any testimony from plaintiff concerning the four or five days
per month she could not work.
Plaintiff was paid the same amount
even when she did not do the work four or five days a month.
Crediting this testimony, as the ALJ apparently did, does not
undermine
the
ALJ’s
finding
of
substantial
work
activity.
“Substantial work activity is work activity that involves doing
significant
physical
or
mental
activities.
Your
work
may
be
substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you
worked before.”
20 C.F.R. § 404.1572(a).
Even though plaintiff
missed four or five days per month, substantial evidence supports
the ALJ’s finding that plaintiff still engaged in substantial work
activity.
- 12 -
Additionally,
any
error
was
harmless
because
continued beyond step 1 of the evaluation process.
the
ALJ
This objection
is overruled.
C. Dr. Kendrick’s “Close to Sedentary Work” Opinion
Dr. Kendrick testified that he would limit plaintiff to “close
to sedentary” work based on her past pain issues.
Tr. 124.)
(Doc. #17-3,
As to plaintiff’s working in 2014, Dr. Kendrick opined
that people with chronic pain have varying capacities to deal with
the pain, it is “a total subjective phenomenon”, and agreed that
plaintiff may have had the capacity to endure the pain at the time.
(Id., Tr. 125-126.)
Dr. Kendrick did not personally evaluate
plaintiff, but reviewed most of the medical evidence.
The ALJ gave Dr. Kendrick’s “close to sedentary” opinion
moderate
weight
because
this
was
more
appropriate
given
plaintiff’s substantial gainful activity in 2014-2015 and her
daily living activities.
(Doc. #17-2, Tr. 40.)
The ALJ also
found that plaintiff could stand/walk for four hours in an eight
hour
workday
based
treating physician.
on
other
medical
opinions,
including
the
The Magistrate Judge found that substantial
evidence supported the ALJ’s decision to give Dr. Kendrick’s
opinion moderate weight.
Plaintiff
objects
that
Dr.
Kendrick’s
opinion
limiting
plaintiff to sedentary was rejected simply because she was employed
- 13 -
in
2014-2015.
Plaintiff
seeks
a
remand
to
reconsider
Dr.
Kendrick’s opinion in light of plaintiff’s testimony that she
missed four to five days of work a month at that job as a cashier.
But, as discussed above, the ALJ never discounted this testimony,
and
substantial
evidence
supports
substantial gainful activity.
the
ALJ’s
determination
of
The Court finds that the magistrate
judge correctly found that substantial evidence supports the ALJ’s
determination.
The objection is overruled.
D. Dr. Kelly’s
Opinion
“Marked
Limitations
Maintaining
Attention”
In the Psychological and Intelligence Evaluation (Doc. #1719),
Dr.
Kelly
cooperative,
evidence
of
found
and
she
that
was
coherent
hallucinations,
evaluation setting.
plaintiff’s
and
demeanor
goal
delusions,
(Id., Tr. 1040.)
overall
directed
with
or
paranoia
in
was
no
the
Dr. Kelly observed that
plaintiff’s cognitive functioning appeared limited, her attention
and
concentration
judgment was poor.
skills
appeared
(Id., Tr. 1041.)
impaired,
and
plaintiff’s
Dr. Kelly found plaintiff
had marked limitations maintaining attention.
(Id., Tr. 1043.)
The ALJ found that “[s]econdary to her mental impairments,
she retains the capacity to understand, remember and carryout
simple instructions and perform simple routine tasks as consistent
with unskilled work.”
(Doc. #17-2, Tr. 30.)
- 14 -
The ALJ concluded:
Dr. Kelly opined the claimant can follow and
understand simple directions and perform simple
tasks independently, maintain a regular schedule
and learn new tasks and relate adequately with
others. She stated the claimant may have marked
difficulties maintaining attention, performing
complex
tasks
independently
and
moderate
difficulties making appropriate decisions and
appropriately dealing with stress (Exhibit 26F/6).
Dr. Kelly's opinion is given some weight. The
undersigned has included the claimant's anxiety as
a severe impairment to resolve all doubt in her
favor. Dr. Kelly noted the claimant may have marked
difficulties maintaining attention, performing
complex
tasks
independently,
which
is
notinconsistent with the above residual functional
capacity.
(Doc. #17-2, Tr. 38.)
The Magistrate Judge noted that the ALJ gave some weight to
Dr. Kelly’s opinion that plaintiff may have a marked limitation
with maintaining attention, but found this was not inconsistent
with the ALJ’s residual functional capacity assessment.
The
Magistrate Judge noted that Dr. Kelly explicitly stated that
plaintiff understood instructions and responded to challenges.
Plaintiff objects that the ALJ failed to explain why the
marked limitation of maintaining attention was not inconsistent
with the residual functional capacity, and that the Magistrate
Judge was improperly rationalizing the decision.
Plaintiff seeks
a remand to clarify whether marked limitation in maintaining
attention is consistent with carrying out simply instructions.
Plaintiff argues that “marked” “suggest greater limitations than
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retaining
the
capacity
to
understand,
remember,
and
carryout
simple instructions and performing simple routine tasks.”
(Doc.
#26, p. 6.)
Because the case is being remanded to reconsider the step
five determination, the Court finds a remand for clarification is
appropriate.
The objection is sustained.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #25) is accepted and
adopted by the Court, except for the harmless error finding at
step 5 and the weight given to Dr. Kelly’s “marked limitations
maintaining attention” opinion.
2.
Plaintiff's Objections (Doc. #26) is OVERRULED IN PART
AND SUSTAINED IN PART as discussed above.
3.
The Decision of the Commissioner of Social Security is
AFFIRMED as to steps one, two, and three of the evaluation process,
and the weight given to Dr. Kendrick’s “close to sedentary work”
opinion; the Decision of the Commission of Social Security is
REVERSED as to the step four finding that plaintiff could return
to
her
past
relevant
work
as
a
cashier
2,
the
step
five
determination that a significant number of jobs existed in the
national economy which plaintiff could still perform, and the
- 16 -
weight
given
to
Dr.
Kelly’s
“marked
limitations
maintaining
attention” opinion.
4.
The case is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) to clarify the weight given to
Dr. Kelly’s opinion and make factual findings as to whether the
number of ticket-taker jobs available in the national economy
constitutes a significant number within the meaning of the statute
and regulation.
5.
The Clerk shall enter judgment accordingly and close the
file.
DONE and ORDERED at Fort Myers, Florida, this
March, 2019.
Copies:
Hon. Douglas N. Frazier
U.S. Magistrate Judge
Counsel of Record
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8th
day of
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