Lane v. Commissioner of Social Security

Filing 26

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 7/1/2019. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LEIGH WICKS LANE,
Plaintiff,
v.

Case No: 2:18-cv-264-FtM-UAM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Leigh Wicks Lane, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her 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 a joint memorandum setting forth their
respective 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, 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 her 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 she 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, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she 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 her 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 her 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 she meets this burden, she 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 her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her 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 her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she 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, she 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

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1200, 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 (“VE”). 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 she 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 an application for a period of disability and DIB and an application for SSI
on February 24, 2015. (Tr. 258, 265). In both applications, Plaintiff alleged a disability onset date
of June 18, 2013. (Tr. 258, 265). Plaintiff’s applications were denied initially on April 2, 2015,
and upon reconsideration on July 17, 2015. (Tr. 170-72, 174-76, 180-84, 186-90). Plaintiff
requested a hearing, and, on January 24, 2017, an administrative hearing was held before
Administrative Law Judge David J. Begley (“the ALJ”). On April 28, 2017, the ALJ entered a
decision finding Plaintiff not disabled. (Tr. 10-22). Plaintiff requested review of the hearing
decision, and on February 26, 2018, the Appeals Council denied the request for review. (Tr. 1-6).
The Commissioner’s final decision is ripe for judicial review. See 42 U.S.C. § 405(g). Plaintiff
initiated the instant action by Complaint (Doc. 1) on April 19, 2018.
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 June 18, 2013, the alleged onset date. (Tr. 12). At step two, the
ALJ found that Plaintiff had the following severe impairments: obesity, bursitis, depression, and
asthma. (Tr. 12). At step three, the ALJ found that Plaintiff did not have an impairment or

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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. 13).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except she cannot climb ladders, ropes, or scaffolds, and can only
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. The claimant is limited to frequent reaching, including overhead
reaching. She should avoid concentrated exposure to extreme heat and
cold, to humidity and wetness, and to irritants, such as fumes, odors, dusts,
gases, and poorly ventilated areas. She should avoid hazardous machinery,
unprotected heights, and open flames. In addition, the claimant is limited
to simple, routine, repetitive tasks in a work environment free from fastpaced production requirements involving only simple work-related
decisions free of any workplace changes.
(Tr. 16). At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as
a bookkeeper. (Tr. 20).
At step five, the ALJ found that considering Plaintiff’s age, education, work experience,
and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform. (Tr. 20). Relying on the testimony of the vocational expert, the ALJ found that Plaintiff
could perform such jobs as marking clerk, route clerk, and office helper. (Tr. 21). The ALJ
concluded that Plaintiff had not been under a disability since June 18, 2013, the alleged onset date,
through May 3, 2017, the date the decision was entered. (Tr. 22).
II.

Analysis
Plaintiff raises a single issue on review: whether the ALJ erred by failing to account for all

limitations associated with Plaintiff’s severe impairment of obesity in the RFC. (Doc. 25 p. 5-11).
Plaintiff argues that the ALJ erred by failing to account for all the effects of Plaintiff’s obesity
impairment, specifically her need for a bariatric chair when sitting. (Doc. 25 p. 6). Plaintiff notes

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that the ALJ recognized and did not contest Plaintiff’s testimony that she does not fit in a regular
work chair, but that the ALJ failed to mention the need for a bariatric chair and failed to provide
an explanation as to why the evidence establishing the need for a bariatric chair was rejected. (Doc.
25 p. 6). Plaintiff contends that the need for a bariatric chair constitutes an accommodation and,
thus, the ALJ’s step five finding is not supported by substantial evidence. (Doc. 25 p. 8-9). In
response, Defendant argues that Plaintiff’s arguments are without merit because she introduced no
evidence from a medical or vocational source suggesting she requires a bariatric chair. (Doc. 25 p.
11-15).
At the administrative hearing, Plaintiff testified what prevents her from working is her
weight, asthma and depression. (Tr. 39). She testified she weighs 272 pounds and is 4 feet 10
inches. (Tr. 38). She indicated that her weight makes everything worse, including her depression
and asthma. (Tr. 59). She said she cannot sit back in chairs, as she was even leaning forward onto
the table at the hearing. (Tr. 66). She testified that she is not comfortable and has trouble sitting
in chairs. (Tr. 66). She indicated that she is incapable of sitting back against the back of a chair
because she does not fit. (Tr. 67).
In his decision, the ALJ acknowledged Plaintiff’s testimony noting that “the claimant
testified she cannot fit in a regular office chair and has trouble bending.” (Tr. 18). The ALJ did
not include a limitation that Plaintiff cannot use regular office chairs and requires a bariatric chair.
(Tr. 18).
After considering Plaintiff’s arguments and the administrative record, the Court finds that
the ALJ did not err by not including a limitation that Plaintiff required a bariatric chair. “As in all
Social Security disability cases, Plaintiff bears the ultimate burden of proving disability, and is
responsible for furnishing or identifying medical and other evidence regarding his impairments.”

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Griffis v. Astrue, 619 F. Supp. 2d 1215, 1218 (M.D. Fla. 2008) (citing Bowen v. Yuckert, 482 U.S.
at 146 n. 5, 107 S.Ct. 2287 (1987); Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir.1991);
McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.1987); 42 U.S.C. § 423(d)(5).

As Defendant

notes, Plaintiff cites to no evidence, medical or vocational, establishing that she requires a bariatric
chair. The only evidence supporting Plaintiff’s claim that she requires a bariatric chair is her own
testimony, which alone does not establish a limitation. See 20 C.F.R. § 404.1528(a)(“Symptoms
are your own description of your physical and mental impairment. Your statements alone are not
enough to establish that there is a physical or mental impairment”).
Further, the Court rejects Plaintiff’s argument that the ALJ erred at step five because he
did not consider that Plaintiff’s need for a bariatric chair was an accommodation. As explained
above, Plaintiff failed to carry her burden of establishing a limitation for a bariatric chair. Thus,
the ALJ was not required to consider this alleged impairment in determining jobs that she could
perform. In any event, the vocational expert testified that most employers, 75 to 80 percent, would
be willing to accommodate the significant difficulty sitting in a regular office chair and that such
consideration would not be a special accommodation. (Tr. 76).
Plaintiff failed to carry her burden of demonstrating that she was disabled. Accordingly,
the Court affirms the Commissioner’s decision.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.

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DONE and ORDERED in Fort Myers, Florida on July 1, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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