Gray v. Commissioner of Social Security

Filing 30

OPINION AND ORDER adopting 27 Report and Recommendations; overruling 28 objection; and the Decision of the Commissioner is affirmed. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 3/14/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DIANA LYNN GRAY,
Plaintiff,
v.

Case No:

COMMISSIONER
SECURITY,

OF

2:17-cv-529-FtM-29PRL

SOCIAL

Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of a Report
and

Recommendation

(Doc.

#27),

filed

on

February

1,

2019,

recommending that the Decision of the Commissioner be affirmed.
Plaintiff filed an Objection to the Report and Recommendation (Doc.
#28) on February 15, 2019.

The Commissioner filed a Response

(Doc. #29) on February 27, 2019.

For the reasons set forth below,

the objections are overruled, the Report and Recommendation is
accepted and adopted, and the Decision of the Commissioner is
affirmed.
I.
At

step

one

of

the

sequential

evaluation

process,

the

Administrative Law Judge (ALJ) found that plaintiff has not engaged
in substantial gainful activity since the June 14, 2013 alleged
onset of disability date.

At step two, plaintiff was found to

have severe impairments including hepatitis C, chronic obstructive
pulmonary disease (COPD), cirrhosis of the liver, a history of
alcohol dependence, depression, and anxiety.
ALJ

determined

that

plaintiff

did

not

have

At step three, the
an

impairment

or

combination of impairments that meet or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
The ALJ found that plaintiff had the residual functional
capacity to perform a less-than-full range of light work.
found:
The claimant could lift/carry twenty pounds
occasionally and ten pounds frequently; sit
six of eight hours, two hours at a time; and
stand/walk six of eight hours a day, two hours
at a time. She could occasionally reach
overhead and she could frequently (not
continuously/repetitively) reach in other
directions and frequently push/pull. The
claimant
could
frequently
operate
foot
controls.
She
should
never
climb
ladders/scaffolds nor work at unprotected
heights;
she
could
occasionally
climb
ramp/stairs, kneel, crouch, and crawl. She
could frequently balance and stoop. She could
occasionally tolerate exposure to moving
mechanical parts, to operate a motor vehicle,
to work in humidity/wetness, to work in dust,
odors, fumes and pulmonary irritants, to work
in extreme cold/heat; and to work with
vibrations. She could tolerate loud (heavy
traffic) noise (Ex. 30F). Secondary to mental
impairments, the claimant could understand,
remember, and carry out instructions for
unskilled and some semi-skilled work. She
could sustain attention and concentration for
at least two-hour segments in an eight-hour

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The ALJ

day. The claimant could interact appropriately
with others. She could adapt to usual work
situations and changes for unskilled and semiskilled work setting. She should avoid fast
paced or high production goal work.
(Doc. #14-2, Tr. 25.)
At step 4, the ALJ found plaintiff was capable of performing
her past relevant work as a customer service representative, sewer,
office helper and order filler.

The ALJ nonetheless continued

with the evaluation process, and found alternatively at Step 5,
based upon the testimony of a vocational expert, that plaintiff
could

perform

other

jobs

existing

in

the

national

economy,

including file clerk, mailer, route delivery clerk, and general
clerk.

The

ALJ

found

that

plaintiff

had

not

been

under

a

disability from the alleged onset date to the date of the Decision.
II.
In the district court, plaintiff raises five issues:
whether

the

ALJ

erred

in

considering

the

opinions

of

(1)
two

consultative examiners; (2) whether the ALJ erred in setting
functional limitations due to plaintiff’s mental impairments in
terms of skill or Specific Vocational Preparation (SVP) levels
rather than General Educational Development (GED) levels; (3)
whether the ALJ improperly classified plaintiff’s past work as
eight separate jobs rather than two composite jobs; (4) whether
the ALJ erred in finding plaintiff could perform other work in the

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national economy given that the jobs identified were semi-skilled;
and (5) whether the ALJ erred by failing to include the limitation
to a supportive non-confrontational environment in the residual
functional capacity determination.
As to each issue, the magistrate judge found that the ALJ’s
decision was supported by substantial evidence and there were no
legal errors.

Plaintiff objects to all such findings.

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. 28 U.S.C. §
636(b)(1).

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).
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).

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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

Ingram v.

1253,

1260

(11th

Court

agrees

Cir.

2007)(citing Martin, 894 F.2d at 1529).
After

an

independent

review,

the

with

the

findings and recommendations in the Report and Recommendation, and
therefore adopts each.

Plaintiff’s objections are overruled.

Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #27) is accepted and

adopted by the Court.
2.

Plaintiff's Objection (Doc. #28) is OVERRULED.

3.

The Decision of the Commissioner of Social Security is

affirmed.

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4.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2019.

Copies:
Hon. Philip R. Lammens
U.S. Magistrate Judge
Counsel of Record

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14th

day