Elliott v. Commissioner of Social Security

Filing 27

ORDER adopting 20 Report and Recommendation, as clarified, overruling objections, affirming Commissioner's decision, directing Clerk to enter judgment and close the file. Signed by Judge Timothy J. Corrigan on 3/5/2015.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARLA GWENNETTA ELLIOTT,
Plaintiff,
vs.

Case No. 3:14-cv-119-J-32JBT

CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

ORDER
This case is before the Court on Plaintiff’s appeal of an administrative decision
denying her application for disability, disability insurance benefits and for supplemental
security income under the Social Security Act (Doc. 1). The parties filed briefs and the
administrative record and, upon review of these filings, the assigned United States
Magistrate Judge issued a Report and Recommendation (Doc. 20) recommending that the
Commissioner’s decision be affirmed.

Plaintiff filed objections to the Report and

Recommendation (Doc. 21) to which the Commissioner responded (Doc. 22).

The

undersigned then recommitted the matter to the Magistrate Judge for clarification (Doc. 23),
which he then provided (Doc. 24). The parties were permitted to file supplemental briefs
which plaintiff did (Doc. 26), though the Commissioner did not.
Upon independent review of the file, the Court finds the Commissioner’s decision is
supported by substantial evidence and rendered in accordance with the law. The ALJ
acknowledged Dr. Butler’s specific findings, including her view that plaintiff “should be able
to complete simple tasks for 6-8 hours in an eight-hour period at an appropriate pace . . .”

See Doc. 12 (Administrative Record) at Tr. 114 (Butler finding); Tr. 67 (ALJ recitation of that
finding). As the Magistrate Judge notes, the meaning of this restriction is ambiguous,
leaving some room for interpretation by the ALJ. See Doc. 20 at 5. The ALJ stated he gave
“great weight” to “the overall conclusions” of Dr. Butler and the other doctors who evaluated
plaintiff’s mental capacity, noting that none of them found plaintiff to be mentally precluded
from performing all work activity. See Doc. 12 at Tr. 68.
To account for plaintiff’s mental deficits, the ALJ included limitations in the
hypothetical posed to the vocational expert that were generally consistent with the limitations
found by Dr. Butler, asking the vocational expert to consider a position with a low stress
environment, no production line, simple tasks, and limited contact with the public.1 The ALJ
also asked the vocational expert about the number and lengths of breaks permitted during
the day, learning that two fifteen minute breaks, one thirty to sixty minute break, and a five
to seven minute break every hour would be permitted for the positions the vocational expert
found. Additionally, the lawyer representing plaintiff at the hearing asked the vocational
expert whether the number of jobs would be eroded if plaintiff was unable to stay on task
15% of the time. The vocational expert testified that for the jobs he found, being off task
15% of the time would not be much of a problem. See Doc. 12 at Tr. 49-53. Thus, the
deficits found by Dr. Butler were sufficiently captured by the limitations posed to the
vocational expert, upon whose testimony the ALJ relied in finding that there were a
significant number of jobs in the national economy that plaintiff could perform, and that

1The hypothetical included various physical restrictions as well but those are not at issue.
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plaintiff was, therefore, not disabled.
The Court finds the facts here are distinguishable from those in Rosa v.
Commissioner, 2012 WL 3041099 (M.D. Fla. 2012) where the ALJ’s RFC failed to account
for any of the plaintiff’s mental deficits at all. Rosa, 2012 WL 3041099, *2. As Judge Kelly
noted in Rosa, a finding of “not disabled” at step five means plaintiff has the capacity to work
for 8 hours a day, 5 days a week. Id. at *5, citing SSR 96-8p. While the ALJ here did not
say specifically where on the 6-8 hour spectrum he thought plaintiff’s work ability would fall,
he considered plaintiff’s reported activities of daily living, the types of treatment she had
been receiving, and the reports from medical providers and examiners in reaching his
determination that her RFC should include restrictions designed to account for her mental
deficits (unlike in Rosa). At the hearing with the vocational expert, the ALJ additionally
inquired as to breaks during the day, and heard further that if plaintiff was off task for an
additional 15% of the day, it would not make a difference. While it is a closer call than some
cases, the Court finds that substantial evidence supports the ALJ’s finding that plaintiff was
not disabled at step five.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s objections to the Report and Recommendation (Doc. 21 and 26) are

OVERRULED, and the Report and Recommendation (Doc. 20, as clarified, Doc. 24) of the
Magistrate Judge is ADOPTED as the opinion of the Court, with the further clarification
provided above.

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2.

Pursuant to sentence four of 42 U.S.C §§ 405(g) and 1383(c)(3), the decision

of the Commissioner is AFFIRMED.
3.

The Clerk is hereby directed to enter judgment accordingly and to close the

file.
DONE AND ORDERED at Jacksonville, Florida this 5th day of March, 2015.

s.
copies:
Honorable Joel B. Toomey
United States Magistrate Judge
counsel of record

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