Linder v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Monte C. Richardson on 4/9/2014. (NTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:13-cv-381-J-MCR
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”). Plaintiff alleged she became disabled on
February 11, 2010 (Tr. 116-23). A hearing was held before the assigned Administrative
Law Judge (“ALJ”) on October 26, 2011 (Tr. 26-48). The ALJ found Plaintiff not
disabled on November 30, 2011 (Tr. 9-20).
In reaching the decision, the ALJ found Plaintiff had the severe impairments of
bronchiectasis, early emphysema, and chronic obstructive pulmonary disease (“COPD”)
(Tr. 14). The ALJ also found Plaintiff had the residual functional capacity to perform
light work as defined in 20 CF.R. § 404.1576(b) and § 416.967(b), except Plaintiff needs
a sit/stand option with a change of position as often as every forty-five minutes; Plaintiff
is restricted to no ladder, rope, or scaffold climbing; Plaintiff needs to avoid dangerous
The parties consented to the exercise of jurisdiction by a United States Magistrate Judge (Doc.
work hazards (such as unprotected heights and exposed machinery); Plaintiff needs to
avoid concentrated pulmonary irritants; and Plaintiff is limited to no more than
occasional exposure to dusts, fumes, and odors. Id. Plaintiff is appealing the
Commissioner’s decision that she was not disabled from February 11, 2010 through
November 30, 2011. Plaintiff has exhausted her available administrative remedies and
the case is properly before the Court. The Court has reviewed the record, the briefs
and the applicable law. For the reasons stated herein, the Commissioner’s decision is
STANDARD OF REVIEW
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d
1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are supported by
substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). “Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004). Where the Commissioner’s decision is supported
by substantial evidence, the district court will affirm, even if the reviewer would have
reached a contrary result as finder of fact, and even if the reviewer finds that the
evidence preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991). The district court must view the evidence as a whole, taking into account
evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (stating the court must scrutinize the entire record to determine the
reasonableness of the Commissioner’s factual findings).
RELEVANT EVIDENCE OF RECORD
Plaintiff was fifty years old on the date the ALJ’s decision was issued (Tr. 37).
Plaintiff attended school through the tenth grade and has past relevant work as a
laundry worker and personal care assistant (Tr. 37-39). Plaintiff was found to be
disabled in 2008 based on a determination that her impairment equaled a listing (Tr. 17,
272). However, Plaintiff returned to work in November 2008 and benefits were
terminated (Doc. 19 at 2). In 2009, Plaintiff was admitted to the hospital twice in April
for three days (Tr. 299, 306). Plaintiff also sought treatment through the emergency
room in April 2009 and July 2009 for shortness of breath (Tr. 279, 363, 365). In
February 2010, Plaintiff was admitted to the hospital and re-diagnosed with chronic
obstructive pulmonary disease, bronchiectasis and emphysema (Tr. 297). Plaintiff
stopped working as a personal care assistant in February 2010 (Tr. 39).
ISSUES ON APPEAL
Plaintiff raises two issues on appeal. First, Plaintiff argues the ALJ erred by
failing to continue the Plaintiff’s benefits based on an unsuccessful work attempt.
Second, Plaintiff argues the ALJ erred by disregarding the evidence that Plaintiff
satisfied a listing. The Court addresses each argument in turn.
Whether the ALJ erred by failing to continue Plaintiff’s benefits
based on an unsuccessful work attempt
Plaintiff asserts she previously satisfied a listing and is disabled regardless of her
ability to work (Doc. 19 at 5). The Commissioner argues there is substantial evidence of
record that supports the finding that Plaintiff did not meet or equal a listing in her
present application (Doc. 22 at 5). Plaintiff contends that if she returns to work and
cannot sustain employment for more than three months, it is considered an
unsuccessful work attempt (Doc. 19 at 5-6). Plaintiff argues the ALJ never made a
determination as to whether Plaintiff’s return to work was an unsuccessful or successful
work attempt (Doc. 19 at 7). Because Plaintiff was previously awarded disability,
Plaintiff asserts the ALJ must first determine if there was a successful improvement in
her condition to warrant a suspension of her benefits. Id. For the reasons discussed
below, Plaintiff’s argument is without merit.
The Eleventh Circuit has held that res judicata does not attach to cases where
“the factual time period for [the claimant’s] current application is different from [the]
previous application.” Luckey v. Astrue, 331 F. App’x 634, 638 (11th Cir. 2010); see
also McKinzie v. Comm’r of Soc. Sec., 362 F. App’x 71, 73 (11th Cir. 2010) (holding ALJ
was not required to give preclusive effect or defer to prior finding that claimant could not
use her arms or hands repetitively because current application concerned an
unadjudicated time period); Reynolds v. Bowen, 844 F.2d 451, 453-54 (7th Cir. 1988)
(stating that evidence in prior applications was “completely irrelevant” to the instant
application, which alleged an onset date beginning after the prior applications were
denied). Furthermore, the Social Security Administration’s Acquiescence Ruling 97-4(9)
states in pertinent part:
If a determination or decision on a disability claim becomes final, the
Agency may apply administrative res judicata with respect to a
subsequent disability claim. . . . However, if the subsequent claim involves
deciding whether the claimant is disabled during a period that was not
adjudicated in the final determination or decision on the prior claim, SSA
considers the issue of disability with respect to the unadjudicated period to
be a new issue that prevents the application of administrative res judicata.
Thus, when adjudicating a subsequent disability involving an
unadjudicated period, SSA considers the facts and issues de novo in
determining disability with respect to the unadjudicated period. SSA does
not adopt findings from the final determination whether the claimant is
disabled with respect to the unadjudicated period.
Acquiescence Ruling 97-4(9).
In this case, Plaintiff was previously found to satisfy a listing and was thus found
to be disabled. However, after Plaintiff returned to work in November 2008, her benefits
were terminated. Plaintiff did not appeal the termination of her benefits. In the
application at issue, Plaintiff alleges a disability onset date of February 11, 2010.
Therefore, Plaintiff’s current application concerns an unadjudicated time period. As
such, the current ALJ was not bound by the previous ALJ’s findings, and he was under
no obligation to determine if Plaintiff’s benefits were properly suspended or if her return
to work in November 2008 constituted an unsuccessful work attempt. See Luckey, 331
F. App’x at 638 (holding Commissioner was not bound by ALJ’s previous award of
benefits under doctrine of administrative res judicata where application at issue
concerned different factual time period from previous application); Griffin v. Astrue, No.
8:11-cv-1524-FtM-29SPC, 2012 WL 3151569, at *8-9 (M.D. Fla. Aug. 2, 2012) (holding
current ALJ need not consider prior RFC findings made by previous ALJ that considered
a different time period); Powell v. Astrue, No. 1:12-cv-02-CSC, 2012 WL 5467534 (M.D.
Ala. Nov. 9, 2012) (same).
Whether the ALJ erred by disregarding the evidence that Plaintiff
satisfied a listing
Plaintiff asserts she previously was awarded benefits after Dr. Eric Puestow,
M.D. rendered an opinion that she satisfied a listing (Doc. 19 at 8). Plaintiff argues that
because she previously satisfied a listing, there should have been medical testimony to
address whether she still satisfies the listing for the current application, and whether she
has the physical ability to sustain work with her pulmonary issues (Doc. 19 at 9).
The listing of impairments in the Social Security Regulations identifies
impairments which are considered severe enough to prevent a person from gainful
activity. By meeting a listed impairment or otherwise establishing an equivalence, a
plaintiff is presumptively determined to be disabled regardless of her age, education or
work experience. Thus, an ALJ’s sequential evaluation of a claim ends if the plaintiff
can establish the existence of a listed impairment. Edwards v. Heckler, 736 F.2d 625,
628 (11th Cir. 1984). However, at this stage of the evaluation process, the burden is on
the plaintiff to prove that he or she is disabled. Bell v. Bowen, 796 F.2d 1350, 1352
(11th Cir. 1986); Wilkinson v. Bowen, 847 F.2d 660, 663 (11th Cir. 1987). In this circuit,
a plaintiff must present specific findings that meet the various tests listed under the
applicable listing. Bell, 796 F.2d at 1353. Mere diagnosis of a listed impairment is not
enough as the record must contain corroborative medical evidence supported by clinical
and laboratory findings. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). “In
order to meet a listing, the claimant must (1) have a diagnosed condition that is included
in the listings and (2) provide objective medical reports documenting that this condition
meets the specific criteria of the applicable listing and the duration requirement.”
Wilkinson 847 F.2d at 662 (emphasis omitted). The plaintiff must show that her
impairment meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521,
530, 110 S. Ct. 885, 891 (1990) (“An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.”).
In the instant case, the ALJ found Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (Tr. 14). The ALJ found
the record did not establish the existence of any such impairment, including the
impairments set forth in section 3.00 of Appendix 1. Id. The ALJ explained the weight
he accorded to certain pieces of evidence and stated that, based on all the record
evidence, Plaintiff’s condition did not meet or functionally equal a listed impairment.
The ALJ acknowledged Plaintiff was found disabled in 2008 based on a determination
that her impairment equaled a listing. However, as discussed above, the ALJ was not
bound by this earlier finding because Plaintiff’s present application concerned a new
and different time period. The ALJ found Plaintiff’s pulmonary function tests did not rise
to the severity level anticipated by respiratory listings found in section 3.00 of Appendix
1. The ALJ noted Plaintiff had only been hospitalized twice for bronchitis since the
alleged onset of disability and found two hospitalizations within two years to be within
tolerable limits. Further, the ALJ noted that Plaintiff testified she did not use her
medication on a regular basis and that Plaintiff looked for work after the alleged onset of
disability. The ALJ also noted Plaintiff’s activities of daily living were not as limited as
one would expect given her complaints of disability. The ALJ stated he considered Dr.
Puestow’s September 11, 2008 opinion that Plaintiff’s respiratory impairment equaled
listing 3.03B, and noted Dr. Puestow referenced one hospitalization in 2007 and three
hospitalizations in 2008 to support his opinion. The ALJ stated he accorded little weight
to Dr. Puestow’s opinion because the medical evidence of record, as of the alleged
onset date, did not support a finding that Plaintiff’s impairment meets or equals a listing.
The ALJ concluded Plaintiff’s respiratory disorders did not meet the severity
requirements outlined in Listings 3.00.
The ALJ’s decision shows he evaluated all of the relevant medical evidence in
determining Plaintiff did not meet or equal a listing in her present application. The ALJ
was not required to give controlling or substantial weight to the non-examining
physician, Dr. Puestow, whose opinion was rendered more than two years before the
alleged onset date. Further, Plaintiff’s argument that the ALJ did not sufficiently develop
the record is without merit. As in all Social Security disability cases, the plaintiff bears
the ultimate burden of proving disability, and is responsible for furnishing or identifying
medical and other evidence regarding her impairments. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987); see also 42 U.S.C. § 423(d)(5) (“An individual shall not be
considered to be under a disability unless he [or she] furnishes such medical and other
evidence of the existence thereof as the Commissioner of Social Security may
require.”). While an ALJ has a basic duty to develop a full and fair record, it is Plaintiff’s
burden to present specific medical evidence that she meets or equals one of the listed
impairments. Bell, 786 F.2d at 1353. The Commissioner requested Plaintiff attend a
consultative examination with Dr. Lynn Harper-Nimock, M.D. for pulmonary function
testing. The ALJ relied upon this and other evidence outlined above to determine
whether Plaintiff satisfied a listing and to determine her residual functional capacity.
After a detailed discussion of the medical evidence of record, the ALJ concluded the
record confirmed the existence of a respiratory impairment but did not support a
resulting inability to work, and Plaintiff’s impairments did not rise to the severity level
anticipated by the listings. Accordingly, the Court finds substantial evidence supports
the ALJ’s determination that Plaintiff’s impairments did not meet or equal a listing. See
Douglas v. Comm’r of Soc. Sec., 486 F. App’x 72, 25-26 (11th Cir. 2012) (“Although
[Plaintiff] argues that various medical records from 2002 through 2008 indicate that he
has serious medical problems that undermine the ALJ's conclusion, we reiterate that the
time period relevant to [Plaintiff’s] disability determination is the span between [alleged
onset date of his disability and the date of termination of his health insurance]. Because
[Plaintiff] does not argue that those dates are incorrect and because the ALJ's
determinations were procedurally correct and supported by substantial evidence, we
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgement consistent with this Order and thereafter to
close the file.
DONE AND ORDERED at Jacksonville, Florida, this 9th day of April, 2014.
Counsel of Record
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