Morris v. Commissioner of Social Security
Filing
18
OPINION AND ORDER affirming the Commissioner's final decision pursuant to sentence four of 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3); directions to the Clerk. Signed by Magistrate Judge James R. Klindt on 8/15/2012. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JULIUS MORRIS,
Plaintiff,
vs.
Case No. 3:11-cv-600-J-JRK
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER1
I. Status
Julius Morris (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). Plaintiff’s alleged inability to work is a result of HIV
infection, mental health issues, and schizophrenia.
See Transcript of Administrative
Proceedings (Doc. No. 11; “Tr.”), filed September 6, 2011, at 139. On August 15, 2007,
Plaintiff filed applications for DIB and SSI, alleging an onset date of September 5, 2001. Tr.
at 12. Plaintiff’s applications were denied initially, see Tr. at 51-56, and were denied upon
reconsideration, see Tr. at 63-66.
On February 9, 2010, an Administrative Law Judge (“ALJ”) held a hearing at which
Plaintiff and a vocational expert (“VE”) testified. Tr. at 26-42. At the time of the hearing,
Plaintiff was forty-three (43) years old. Tr. at 29. The ALJ issued a Decision on February
1
The parties consented to the exercise of jurisdiction by a United States Magistrate Judge. See
Consent to the Exercise of Jurisdiction by a United States Magistrate Judge (Doc. No. 12), filed September 6,
2011; Order of Reference (Doc. No. 14), entered September 12, 2011.
22, 2010, finding Plaintiff not disabled through the date of the Decision. Tr. at 12-21. On
May 17, 2011, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-6, thereby
making the ALJ’s Decision the final decision of the Commissioner. On June 20, 2011,
Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), by timely filing
a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision.
Plaintiff raises one issue on appeal. See Memorandum in Support of Complaint (Doc.
No. 16; “Pl.’s Mem.”), filed September 23, 2011. Plaintiff frames the issue as follows: “The
[ALJ] erred by not formulating a complete hypothetical for the [VE].” Pl.’s Mem. at 4
(capitalization and emphasis omitted). After a thorough review of the entire record and
consideration of the parties’ respective memoranda, the Commissioner’s final decision is due
to be affirmed for the reasons explained herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,2 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
2
“Disability” is defined in the Social Security Act as the “inability to engage in 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 12
months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 14-21. At step one,
the ALJ observed that Plaintiff “has not engaged in substantial gainful activity since
September 5, 2001, the alleged onset date.” Tr. at 14 (emphasis and citation omitted). At
step two, the ALJ found Plaintiff suffers from “the following severe impairments: human
immunodeficiency virus (HIV)[,] schizophrenia, affective disorder, personality disorder, drug
addiction and alcoholism.” Tr. at 14 (emphasis and citation omitted). At step three, the ALJ
ascertained Plaintiff “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” Tr. at 15 (emphasis and citation omitted).
The ALJ determined:
[Plaintiff] has the residual functional capacity [(“RFC”)] to perform less than the
full range of light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b).
[Plaintiff] must avoid ladders, unprotected heights, and the operation of heavy
moving machinery. [Plaintiff] may occasionally bend, crouch, kneel, stoop,
squat, and crawl. [Plaintiff] needs a low stress work environment, simple tasks,
and limited contact with the public.
Tr. at 16 (emphasis and citation omitted). At step four, the ALJ found Plaintiff “is unable to
perform any past relevant work,” which was identified as “Kitchen Helper” and “Wire-TakingMachine Operator.” Tr. at 19 (emphasis and citation omitted). The ALJ indicated 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,” such as
“Assembler Small Products,” “Mail Sorter,” and “Table Worker.” Tr. at 20 (emphasis and
citation omitted). The ALJ concluded that Plaintiff “has not been under a disability . . . from
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September 5, 2001, through the date of th[e D]ecision.” Tr. at 21 (emphasis and citation
omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077,
1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision
reached by the Commissioner must be affirmed if it is supported by substantial
evidence–even if the evidence preponderates against the Commissioner’s findings.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
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IV. Discussion
As noted above, Plaintiff raises one issue on appeal, which deals with the ALJ’s
hypothetical posed to the VE. See Pl.’s Mem. at 4-6. Specifically, Plaintiff argues the ALJ’s
failure to include in the hypothetical the effects of Plaintiff’s moderate limitations in
concentration, persistence, and pace was reversible error. See id. On the other hand, the
Commissioner argues that the ALJ’s specific inclusion of a low stress work environment and
simple tasks accounted for Plaintiff’s limitations. See Memorandum in Support of the
Commissioner’s Decision (Doc. No. 17), filed November 23, 2011, at 10. In advancing their
respective arguments, both parties rely on Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1181 (11th Cir. 2011), in which the Court found error in an ALJ’s decision because the ALJ
failed to account for a plaintiff’s moderate limitations in maintaining concentration,
persistence, and pace. See Pl.’s Mem. at 4-5; Def.’s Mem. at 9-11.
At the hearing, the ALJ posed a hypothetical to the VE that included the limitations of
“a lo[w] stress work environment” and “simple tasks,” and the VE was asked to assume a
person with “no skills or semi-skills at all.” Tr. at 40. In response to the hypothetical, the VE
opined that a person with those limitations retains the ability to perform the following jobs:
“assembler, small products,” “mail sorter,” and “table worker.” Tr. at 41.
In the fifth step of the sequential evaluation process, an ALJ may pose a hypothetical
question to a VE as part of his determination of whether a claimant can obtain work in the
national economy. See 20 C.F.R. § 416.920(a)-(f). When the ALJ relies on the testimony
of a VE, “the key inquiry shifts from the RFC assessment in the ALJ’s written decision to the
adequacy of the RFC description contained in the hypothetical posed to the VE.” Corbitt v.
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Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008)
(unpublished). In determining an individual’s RFC and later posing a hypothetical to a VE
which includes the RFC, the ALJ “must consider limitations and restrictions imposed by all
of an individual’s impairments, even those that are not ‘severe.’” SSR 96-8P, 1996 WL
374184 at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle v. Sullivan, 914 F.2d 222, 226
(11th Cir. 1990) (stating “the ALJ must consider a claimant’s impairments in combination”)
(citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)). “In
order for a [VE]’s testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.” Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.
1999)); see also Loveless v. Massanari, 136 F. Supp. 2d 1245, 1250 (M.D. Ala. 2001).
“[A]n ALJ’s hypothetical restricting [a] claimant to simple and routine tasks adequately
accounts for restrictions related to concentration, persistence and pace where the medical
evidence demonstrates that the claimant retains the ability to perform the tasks despite
concentration deficiencies.” Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 871-72 (11th
Cir. 2011) (unpublished) (citation omitted); see Winschel, 631 F.3d at 1181 (recognizing that
“[w]hen medical evidence demonstrates that a claimant can engage in simple, routine tasks
or unskilled work despite limitations in concentration, persistence and pace, courts have
concluded that limiting the hypothetical to include only unskilled work sufficiently accounts
for such limitations”); Dawson v. Comm’r of Soc. Sec., No. 6:11-cv-1128-ORL-28, 2012 WL
1624267 (M.D. Fla. May 9, 2012) (unpublished) (collecting cases which recognize that the
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inclusion of limitations such as work involving simple tasks and/or simple instructions
properly accounts for moderate limitations in concentration, persistence, and pace).
Focusing on the hypothetical presented to the VE at the hearing, the ALJ’s express
inclusion of the limitations of “a lo[w] stress work environment” and “simple tasks,” in addition
to the assumption of a person with “no skills or semi-skills at all,” adequately accounted for
Plaintiff’s moderate limitations in concentration, persistence, and pace.
The medical
evidence of record supports the finding that Plaintiff can still work despite his moderate
limitations. The ALJ relied, in part, on the opinion of Val Bee, Psy.D. Tr. at 19 (citing Tr. at
647-49). Dr. Bee specifically opined as to Plaintiff’s ability to maintain concentration. See
Tr. at 647-69. Dr. Bee found that Plaintiff “may . . . exhibit occasional lapses in concentration
and productivity, but he appears mentally capable of well structured task activity . . . .” Tr.
at 649 (emphasis added). Dr. Bee also opined that Plaintiff’s ability to remember locations
and work-like procedures, as well as his ability to understand and remember very short and
simple instructions was not significantly limited. Tr. at 647. According to Dr. Bee, the only
areas in which Plaintiff has moderate limitations are Plaintiff’s “ability to understand and
remember detailed instructions”; his “ability to carry out detailed instructions”; his “ability to
maintain attention and concentration for extended periods”; and his “ability to complete a
normal work-day and workweek without interruptions . . . and to perform at a consistent pace
without an unreasonable number and length of rest periods.” Tr. at 647-48. Notably, Plaintiff
does not take issue with Dr. Bee’s findings.
The undersigned finds that the ALJ properly accounted for Plaintiff’s moderate
limitations in concentration, persistence, and pace by including in the hypothetical the
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limitations of a low stress work environment and simple tasks, as well as the assumption of
a person with no skills or semi-skills at all. The medical evidence of record, specifically Dr.
Bee’s opinion, demonstrates that Plaintiff is able to perform work consistent with the ALJ’s
Decision despite Plaintiff’s moderate limitations in concentration, persistence, and pace. See
Jarrett, 422 F. App’x at 872. The ALJ’s Decision is supported by substantial evidence. Thus,
Plaintiff’s argument fails.
V. Conclusion
Upon review of the entire record, the undersigned finds that the ALJ properly
accounted for Plaintiff’s moderate limitations in concentration, persistence, and pace. The
ALJ’s hypothetical presented to the VE is supported by substantial evidence. After due
consideration, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), AFFIRMING the Commissioner’s
final decision.
2.
The Clerk of Court is further directed to close the file.
DONE AND ORDERED at Jacksonville, Florida on August 15, 2012.
jld
Copies to:
Counsel of record
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