Whitney v. Commissioner of Social Security

Filing 25

OPINION AND ORDER accepting and adopting 22 Report and Recommendations; overruling 23 Objection; affirming the Decision of the Commissioner. The Clerk shall enter judgment and close the file. Signed by Judge John E. Steele on 9/19/2022. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JESSE WHITNEY,
Plaintiff,
v.

Case No:

2:21-cv-217-JES-NPM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This

matter

is

before

the

Court

on

consideration

of

Magistrate Judge Nicholas P. Mizell’s Report and Recommendation
(Doc. #22), filed on August 1, 2022, recommending that the Decision
of the Commissioner be affirmed.

Plaintiff filed Objections to

the Report and Recommendation (Doc. #23) on August 12, 2022.

The

Commissioner filed a Response (Doc. #24) on August 25, 2022.
I.

Standard of Review

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).

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.

Ingram v.

Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin, 894 F.2d at 1529).
II.

The ALJ’s Decision

The Administrative Law Judge (ALJ) conducted a telephonic
hearing on June 22, 2020 and issued a decision on August 17, 2020.
At Step One, the ALJ found that Whitney had not engaged in
substantial gainful activity since October 20, 2017, the alleged
onset date of disability.

At Step Two, the ALJ determined that

Whitney had the following severe impairments: morbid obesity,
degenerative disc disease, degenerative joint disease, diabetes
mellitus,
depressive

hypertension,
disorder

that

peripheral

neuropathy,

significantly

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limit

and

the

a

major

ability

to

perform basic work activities.

The ALJ found several non-severe

impairments that did not exist for a continuous period of 12
months, were responsive to medication, accommodated by a residual
functional

capacity,

did

not

require

significant

medical

treatment, or did not result in any continuous exertional or nonexertional functional limitations.

(Tr. 18.)

At Step Three, the ALJ determined that Whitney did not have
a physical or mental impairment or combination of impairments that
meet(s) or medically equals the severity of one of the limited
impairments.

The

ALJ

found

no

limitation

remembering, or applying information.
following

the

examinations.
independently,

conversation

during

in

understanding,

There was no difficulty
the

hearing

or

during

The ALJ found that Whitney performs personal care
manages

his

medication

independently,

prepares

simple meals, cares for pets, drives, shops in stores and by
computer, manages finances, and watches television.
also no limitations in interacting with others.
mild

limitation

maintaining pace.

regarding

concentrating,

There were

The ALJ found a
persisting,

or

As for adapting or managing oneself, the ALJ

found a moderate limitation.

(Trs. 19-21.)

The ALJ found that Whitney had:
the residual functional capacity to lift and
carry weights of 20 pounds occasionally and 10
pounds frequently; stand and/or walk for a
total of six hours in an eight-hour workday;
and sit for a total of six hours in an eight-

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hour workday. He can never climb ladders or
scaffolds;
occasionally
climb
ramps
and
stairs;
frequently
balance;
occasionally
stoop, kneel, and crouch; but he can never
crawl. The claimant must avoid workplace
hazards such as unprotected heights and
unshielded
rotating
machinery.
He
can
frequently use his bilateral upper extremities
for handling and fingering. He also must be
permitted to alternate sitting and standing
while remaining at his workstation for a
maximum of 30-minute intervals. The claimant
must use a cane to get to and from his
workstation, but once at his workstation, he
does not need cane anymore. He is limited to
simple tasks.
(Tr. 22.)

At Step Four, the ALJ found that Whitney was unable to

perform any past relevant work as a tow truck driver or an EMT.
At

Step

Five,

the

ALJ

determined,

based

on

Whitney’s

age,

education, work experience, and residual functional capacity, that
there were jobs that existed in significant numbers in the national
economy

that

Whitney

could

perform.

The

ALJ

heard

from

a

vocational expert regarding three sedentary jobs: table worker,
final assembler, and bonder.

Whitney was found to be not disabled

from the onset date of October 20, 2017, through the date of the
decision.
III. Moderate Limitation
Plaintiff objects that the ALJ found moderate limitations in
adapting or managing oneself because of the limited ability to
handle stress but failed to explain why the problem does not affect
the ability to work.

The Magistrate Judge described the issue as

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follows: “Because the ALJ neither explicitly nor implicitly asked
the vocational expert to account for this when opining about the
availability of work that Whitney could perform, the question is
whether

the

ALJ’s

opinion

indicates

that

the

RFC—which

the

vocational expert did account for—adequately accounted for this
moderate limitation.”

(Doc. #22, p. 11.)

The Magistrate Judge

concluded that the “thorough recitation and consideration of the
evidence and the deferential standard of review” indicate that
Whitney’s

ability

suggests.

to

work

(Id., p. 12.)

is

not

more

limited

than

the

RFC

Plaintiff objects that we do not know

the underlying reason why the ALJ found moderate limitations and
therefore it is impossible to determine whether it would affect
the ability to work.

(Doc. #23, p. 3.)

The Commissioner responds

that plaintiff “misses the entire point” of the Magistrate Judge’s
finding that the RFC’s mental limitation accounted for moderate
limitations

and

that

substantial

evidence

supported

the

RFC.

(Doc. #24, p. 3.)
The ALJ found that “claimant has experienced a moderate
limitation” and “no more than a moderate limitation in the domain
of functioning” at Step 3.

(Tr. 21.)

The ALJ clarified this

finding by weighing “high functioning activities of daily living”
as inconsistent with the “physical and mental allegations of
disability.”

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The claimant maintained he is not able to sit
or stand long, or bend. He remembers being
taught how to use a cane, but does not remember
who prescribed it. He alleged difficult
handling stress well, due to pain. Mentally,
the claimant alleged that he has depression,
but denied receiving any mental health
treatment (testimony, Exhibit B6E).
The claimant asserted he watches TV, does his
laundry, and prepares simple meals daily, in
the microwave. He uses his laptop to surf the
web, access Facebook, and check emails. He
does not use his computer for games because he
does not have a streaming service. He performs
personal
care,
manages
his
medications
independently, and cares for pets. He goes out
and attends appointments alone, shops in
stores and by computer, manages his money
independently, and watches TV. He denied
problems getting along with friends, family,
and neighbors. He visits with his parents
weekly, gets along well with authority
figures, and has never been fired from a job
for difficulty getting along with others. He
is able to pay attention for as long as he
needs
to,
follow
written
and
spoken
instructions, and complete tasks. He is able
to handle changes in routine (testimony,
Exhibit B6E).
The claimant asserted that he is able to
drive. The fact that he drives is a
significant reason to discount the impact his
depression has on his ability to concentrate.
One need only consider that even minimal
operation
of
a
motor
vehicle
requires
substantial
attention,
concentration,
understanding, remembering and carrying out
complex functions, and substantial exercise of
independent judgment. The claimant's own
testimony reveals that he has been doing all
of this on a regular basis. This activity
speaks far more loudly in revealing the
claimant's capabilities than any statement
that he is unable to concentrate and focus.
. . . .
- 6 -

The medical evidence, and in particular, the
clinical
signs
and
objective
evidence
contained in imaging and diagnostic testing,
treatment notes, physical and mental status
examinations, and the claimant’s high level of
daily activities do not support limitations of
function consistent with a complete inability
to perform all work activity. Accordingly, the
claimant's ability to participate in such
activities undermines the persuasiveness of
his
allegations
of
disabling
functional
limitations.
(Trs. 28, 29.)

Because the ALJ detailed the factual regarding

Whitney’s self-care and functioning, the Court finds that the ALJ’s
findings were supported by substantial evidence.

This objection

is overruled.
IV.

SVP 2 and Training Period

The Magistrate Judge found no inconsistency between SVP 2 and
a short, on-the-job training period, as the definition of SVP 1
omits any reference to a training period.

(Doc. #22, p. 13.)

Plaintiff argues that they are not consistent and the ALJ failed
to provide an explanation of why he thought plaintiff was more
limited than stated by the State agency doctors.
4.)

(Doc. #23, p.

The Commissioner notes that the “State agency medical and

psychological consultants do not complete the form, and their prior
administrative medical findings have nothing to do with this issue
Plaintiff raised.”

(Doc. #24, p. 6.)

A State Agency Explanation of Determination provided that
plaintiff was “still capable of performing work that requires less

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physical

effort,

period.”

and

(Tr. 94.)

only

a

very

short,

on-the-job

training

The ALJ stated: “The opinions of the state

agency medical review physicians, who opined the claimant was
capable of a range of light work activity, are persuasive (Exhibits
B6A,

B7A,

B10A,

B11A).”

Notably

absent

was

inclusion

reference to Exhibit B3A, the source of the language.

of

a

The ALJ

determined that Whitney could perform physical requirements of
sedentary exertional level, with limitations.

(Tr. 29.)

As acknowledged by plaintiff, doc. #23, p. 4, the ALJ is not
bound by the explanation.

See, e.g., Garrow v. Saul, No. 5:19-

CV-586-OC-18JBT, 2020 WL 5802493, at *4 (M.D. Fla. Aug. 19, 2020),
report and recommendation adopted sub nom. Garrow v. Comm'r of
Soc. Sec., No. 5:19-CV-586-OC-18JBT, 2020 WL 5797867 (M.D. Fla.
Sept. 29, 2020).

A specific vocational preparation (SVP) of 1

involves a short demonstration only, while an SVP of 2 is anything
beyond short demonstration up to and including 1 month.
C

-

Components

of

the

Definition

Occupational Titles, 1991 WL 688702.
V.

Trailer,

Appendix

Dictionary

of

The objection is overruled.

Numbers in National Economy

The Magistrate Judge noted the vocational expert’s extensive
education experience in the industry and found no error in deriving
estimated job numbers from sources outside the DOT.
p. 16.)

(Doc. #22,

Plaintiff relies on this brief exchange with counsel:

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Q And in terms of your numbers, your numbers
are not DOT specific, but representative of
those types of jobs?
A Correct.
ATTY: All right. I don't have any further
questions for the vocational witness, Your
Honor.
(Tr. 79.)

Counsel did not object but argues that the VE provided

job numbers from some larger group of jobs but not for the three
DOT occupations.

(Doc. #23, p. 7.)

The Commissioner argues that

plaintiff has failed to show that the VE’s testimony was not
substantial evidence in support of the ALJ’s decision.

(Doc. #24,

p. 8.)
Plaintiff agrees that the DOT does not quantify the number of
jobs for any of its occupational descriptions, and therefore argues
that counsel had no reason to ask whether the numbers come from
the DOT.

(Doc. #22, p. 16; Doc. #23, p. 6.)

The vague way the

question was asked does not support finding an error was committed
as occurred in Goode v. Comm'r of Soc. Sec., 966 F.3d 1277, 1282
(11th

Cir.

2020).

In

fact,

the

numbers

were

specifically

supported as follows:
A Table worker, 739.687-182, sedentary, SVP 2,
40,000 jobs nationally. Final assembler,
713.687-018, sedentary SVP 2, 65,000 jobs
nationally. Semiconductor bonder, 726.685066, sedentary, SVP 2, 38,000 jobs nationally.
I would note, Your Honor, that a sit/stand
option is not covered in the DOT, nor in the
SCO. The answer comes from review of the
current literature, which indicates the jobs
given can be and are performed with a
- 9 -

sit/stand option. 25% reduction was taken in
the numbers normally given for those jobs. 35
years of experience doing job analysis
placement labor market surveys, I agree with
the literature.
(Tr. 78.)
After

The objection is overruled.
an

independent

review,

the

Court

agrees

with

the

findings and recommendations in the Report and Recommendation.
Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #22) is accepted and

adopted by the Court.
2.

Plaintiff's Objection (Doc. #23) is OVERRULED.

3.

The Decision of the Commissioner of Social Security is

affirmed.
4.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September 2022.

Copies:
Hon. Nicholas P. Mizell
U.S. Magistrate Judge
Counsel of Record

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19th

day