Neefe v. Commissioner of Social Security

Filing 30

ORDER adopting 26 Report and Recommendation of the Magistrate Judge. The Decision of the Commissioner of Social Security is AFFIRMED. The Clerk is directed to terminate all pending motions and deadlines, enter judgment accordingly, and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 3/19/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TAYLOR DAVID NEEFE,
Plaintiff,
v.

Case No: 6:11-cv-1043-Orl-36GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon consideration of Magistrate Judge Gregory J.
Kelly’s Report and Recommendation, recommending that the Court affirm the decision of the
Administrative Law Judge (“ALJ”) (Doc. 26). Plaintiff Taylor David Neefe (“Plaintiff”) filed an
objection to Judge Kelly’s Report and Recommendation (“Objection”) (Doc. 27), to which the
Commissioner of Social Security (“Commissioner”) responded (Doc. 28). This matter is ripe for
review.
I.

BACKGROUND

Plaintiff filed a Complaint on June 22, 2011, seeking review of the Commissioner’s
decision denying Plaintiff’s application for Social Security disability benefits (“Application”)
(Doc. 1). Plaintiff alleges that he has been disabled since September 1, 1998, and is entitled to
Social Security Disability benefits (“SSDI”) and Supplemental Security Income Payments
(“SSI”). Id. at ¶ 5.
Plaintiff is twenty years old. R-32. On December 22, 2008, Robin Johnson, Psy. D., a
non-examining consultant, diagnosed Plaintiff with borderline intellectual functioning, bipolar
disorder and substance addiction disorders. R. 354, 356, 361. Plaintiff’s mother, Joan Ellen

Coakley, testified that Plaintiff was awarded Social Security benefits when he was nine years
old, but was subsequently deemed ineligible after she got a higher paying job. R. 45-46. Ms.
Coakley stated that she filed the Application when Plaintiff turned eighteen because his bipolar
disorder, obsessive compulsive disorder and learning problem make it unlikely that he will ever
hold a permanent, full-time job. R-6.
Dr. William Puga, M.D. saw Plaintiff six times from 2007 to 2009. R-267-71, 368-70.
Dr. Puga opined that Plaintiff has a good ability to understand, remember and carry out simple
job instructions. R. 376. However, Dr. Puga opined that Plaintiff cannot manage his own
benefits based upon his mood, unpredictable behavior, poor social skills and lack of
responsibility.

R. 377.

Malcolm J. Graham, Ph.D., a clinical psychologist, conducted a

consultative examination on behalf of the Commissioner. R. 304-08. Dr. Graham found that
Plaintiff “could relate information in a rational, coherent, and sequential fashion.” R. 305. Dr.
Graham indicated that Plaintiff reported being bipolar, but noted that his examination did not
reveal any problems with attention, concentration or memory, or indicate anxiety, depression or
thought disorder.

R. 307.

Additionally, Val Bee, Psy.D., completed a psychiatric review

technique and a mental residual functional capacity assessment on behalf of the Commissioner.
Dr. Bee made assessments in the areas of mental capacity, concentration, social interaction, and
adaptation. See Doc. 26, pp. 4-6. Dr. Bee concluded that Plaintiff “appears mentally capable of
well-structured task activity” and stated that he “generally appears capable of at least
superficially appropriate interaction.” R. 324-35.
Upon review of the expert testimony, the ALJ issued a decision on July 22, 2010, finding
that Plaintiff suffers from the severe impairments of learning disability, obsessive-compulsive
disorder, borderline intellectual functioning, affective disorder and has a history of polysubstance

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abuse. Doc. 26, p. 8; R.10-21. However, the ALJ concluded that Plaintiff’s impairments do not
meet or equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). The ALJ found that Plaintiff can perform medium level work involving simple tasks
in a low stress environment with limited public contact. R-14. Relying upon the VE, the ALJ
found that Plaintiff can work as “a cleaner II, carcass washer and bone picker”, determining that
he was not disabled. R-20.
Upon review of the expert testimony and record before the ALJ, Magistrate Judge Kelly
recommended that the Court enter judgment in favor of the Commissioner and close this case.
On December 21, 2012, Plaintiff filed an Objection (Doc. 27), to which the Commissioner
responded on January 2, 2013 (Doc. 28). On March 5, 2012, Plaintiff submitted a Notice of
Supplemental Authority, attaching a recent decision construing Winschel v. Commissioner of
Social Security, 631 F.3d 1176 (11th Cir. 2011). Doc. 29-Ex. 1 (citing Sheri Ann Hommell v.
Commissioner of Social Security, Case No. 6:12-cv-102-Orl-31GJK).
II.

STANDARD

Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may
serve and file specific written objections to the proposed findings and recommendations.”
When a party makes a timely and specific objection to a finding of fact in a Report and
Recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507,
512 (11th Cir. 1990). The district judge may accept, reject, or modify in whole or in part, the
Report and Recommendation of the magistrate judge. Fed. R. Civ. P. 72(b)(3). The district
judge may also receive further evidence or recommit the matter to the magistrate judge with

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further instructions. Id.

The district judge reviews legal conclusions de novo, even in the

absence of an objection. See Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir.
1994).
The Court reviews the Commissioner’s decision to determine if it is supported by
substantial evidence and is based upon proper legal standards. Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1158 (11th Cir. 2004). Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.

Id. at 1158.

Where the Commissioner’s decision is supported by

substantial evidence, the 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. 42 U.S.C. § 405(g); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004) (“If the Commissioner’s decision is supported by substantial evidence, this
Court must affirm, even if the proof preponderates against it.”). The Court must view the
evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).
III.

ANALYSIS
A. Five step disability analysis

The Social Security Administration has established a five-step sequential evaluation
process for determining whether an individual is disabled.

20 C.F.R. §§ 404.1520(a),

416.920(a). When making a disability determination, the ALJ follows this evaluation process:
(1) whether Plaintiff is currently performing substantial gainful activity; (2) whether Plaintiff has
a severe impairment; (3) whether the severe impairment meets or exceeds an impairment in the
listings; (4) whether the Plaintiff can perform his past relevant work; and (5) whether Plaintiff

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can perform other jobs that exist in the national economy. Wright v. Comm’r of Soc. Sec., 327 F.
App’x 135, 136-37 (11th Cir. 2009); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The Plaintiff has the burden of proof on the first four steps; the Commissioner carries the burden
on the fifth step. Id. at 137. If it is determined at any step in the analysis that the claimant is not
disabled, the evaluation does not proceed. Id.
B. Plaintiff’s Objection
In his Objection, Plaintiff argues that the Magistrate Judge improperly rejected his
argument that the ALJ’s failure to include his limitations in the hypothetical question posed to
the vocational expert (“VE”) was reversible error. Doc. 27, pp. 2-11. Specifically, Plaintiff
contends that the ALJ’s hypothetical question to the VE cannot omit his limitation in
concentration, persistence, and pace as found by the experts. Id. (citing Winschel v. Comm. of
Social Security, supra). In Winschel, the ALJ’s hypothetical question to the VE omitted the
moderate limitation in claimant’s concentration, persistence and pace. The Eleventh Circuit
remanded the case back to the ALJ with instruction to “pose a hypothetical question to the
vocational expert that specifically accounts for [plaintiff’s] moderate limitation in maintaining
concentration, persistence, and pace.” 631 F.2d at 1181.
Plaintiff argues that, in his case, the ALJ found that he had moderate limitations
maintaining concentration, persistence or pace. R-13. In his RFC assessment, the ALJ found
that Plaintiff had the RFC to perform medium work as defined in the statute with limited
exceptions. R-14.1 According to Plaintiff, the ALJ incorrectly excluded any consideration of
Plaintiff’s limitation regarding concentration, persistence, or pace in the RFC assessment. Doc.
1

The ALJ found that Plaintiff had the residual capacity to perform: Medium work as defined in
20 CFR 416.967(c) except the claimant must avoid ladders, unprotected heights and the
operation of heavy moving machinery. In addition, the claimant requires a low stress
environment and work involving simple tasks and only limited contact with the public. R-14.
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27, p. 4. Plaintiff argues that Winschel holds that the ALJ must pose a hypothetical question to
the VE specifically accounting for his moderate limitations in maintaining concentration,
persistence, and pace. Id. at 10; Winschel, 631 F.3d at 1181. Therefore, Plaintiff contends that
the hypothetical questions posed to the VE were incomplete and the ALJ failed to consider these
limitations in step five. Id. at 5-6. In his Notice of Supplemental Authority, Plaintiff cites a
recent decision from the Middle District where the court found that if the claimant is found to
suffer from at least moderate limitations at steps two and three, Winschel requires the ALJ to
either (1) indicate that those limitations do not affect the claimant’s ability to work or (2) include
those limitations, either explicitly or implicitly, in the hypothetical questions posed to the VE.
See Hommell v. Comm’r of Soc. Sec., Case No. 6:12-cv-102-Orl-31GJK, Doc. 20, p. 7.
In response, the Commissioner explains that Plaintiff misinterprets Winschel and
maintains that the Report and Recommendation appropriately integrates Winschel and its
progeny. Doc. 28, pp. 2-4. The Commissioner agrees that Winschel holds an ALJ’s hypothetical
question to a VE must account for a claimant’s limitations in maintaining concentration,
persistence, or pace for the VE’s response to constitute substantial evidence. Id. at 2; Winschel,
631 F.3d at 1181. However, the Commissioner maintains that when the record contains evidence
that the claimant can perform some work despite this limitation, a hypothetical question
including the corresponding limitation in work tasks is sufficient. Doc. 28, p. 8 (citing Winschel,
631 F.3d at 1180 (“But when 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.”)).

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Further, the Commissioner cites Eleventh Circuit cases following Winschel which
explicitly state that when the record contains medical evidence indicating that the claimant can
perform certain types of work despite a limitation in concentration, persistence, or pace, a
hypothetical question including a limitation to such work is adequate. See Land v. Comm. of
Social Security, 2012 WL 5313342, *4 (11th Cir. 2012) (“We have held that an ALJ’s
hypothetical restricting the claimant to simple and routine tasks adequately accounts for mental
limitations where the medical evidence demonstrates that the claimant retains the ability to
perform those tasks despite deficiencies”); Jarrett v. Comm. of Social Security, 422 Fed. App’x
869, 876 (11th Cir. 2011) (“Furthermore, an ALJ’s hypothetical restricting the 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.”); Rosario v. Comm. of Social Security, 2012 WL
4074421, *2 (11th Cir. 2012) (same); Scott v. Comm. of Social Security, 2012 WL 5358868, *2
(11th Cir. 2012) (same).
In this case, the Court agrees with the Magistrate Judge that the ALJ’s hypothetical
implicitly accounted for his findings that Plaintiff was limited to simple tasks. Indeed, the ALJ’s
hypothetical assumes that despite his conditions, Plaintiff could perform medium work, needs to
avoid operating heavy machinery, and needs a low-stress work environment, simple tasks, and
only limited contact with the public. See R-51. First, the medical evidence clearly demonstrates
that Plaintiff could perform simple tasks despite his limitations in maintaining concentration,
persistence, or pace. Specifically, Dr. Bee recognized that Plaintiff was moderately limited in
maintaining concentration, persistence or pace, but found that he could understand, remember,
and complete short and simple instructions and perform “well-structured task activity.” R- 18.

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Further, as the Magistrate Judge noted, Dr. Puga opined that Plaintiff has a good ability to carry
out simple job instructions. R-376; Doc. 26, p. 14 n.3.
In addition to being supported by the medical evidence, the Court finds that the ALJ’s
hypothetical implicitly accounts for his own findings regarding Plaintiff’s impairment in
concentration, persistence and pace and thus complies with Winschel and the subsequent
Eleventh Circuit decisions.2

Although the Court is aware that there is disagreement in

interpreting Winschel, here the ALJ has done more than rely upon medical evidence in the record
indicating that Plaintiff can work despite his limitations. Compare to Hommell, Case No. 6:12cv-102-Orl-31GJK, Doc. 16, p. 6. Indeed, the ALJ’s hypothetical implicitly accounts for its
findings that despite Plaintiff’s moderate limitation in concentration, persistence or pace,
Plainitff can still work with the given restrictions. The Court is satisfied that, in this case,
Magistrate Judge Kelly correctly concluded that the ALJ properly accounted for Plaintiff’s
moderate limitation in concentration, persistence or pace by including a limitation to simple tasks
in his hypothetical to the VE. See Winschel, 631 F.3d at 1180 (“But when 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.”); Land,
2012 WL 5313342, *4; Jarrett, 422 Fed. App’x at 876; Rosario, 2012 WL 4074421, *2; Scott,
2012 WL 5358868, *2; Figgs v. Astrue, 2011 WL 5357907, *9 (M.D. Fla. 2011) (limitation to
simple, routine tasks accounted for claimant’s moderate limitation in concentration, persistence
2

The ALJ’s hypothetical reiterates its finding in the RFC assessment: “After careful
consideration of the entire record, the undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in 20 CFR 416.967(c) except the
claimant must avoid ladders, unprotected heights and the operation of heavy moving machinery.
In addition, the claimant requires a low stress environment and work involving simple tasks and
only limited contact with the public.” R. 14.
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or pace where the non-examining consultant opined that claimant can carry out short and simple
instructions).
Therefore, upon consideration of the Report and Recommendation and Plaintiff’s
Objection thereto, and upon this Court’s independent examination of the file, it is determined
that the Report and Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is now ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 26) is ADOPTED,
CONFIRMED and APPROVED in all respects and is made a part of this Order for all
purposes, including appellate review.
2. The Decision of the Commissioner of Social Security is AFFIRMED.
3. The clerk is directed to terminate all pending motions and deadlines, enter judgment
accordingly, and CLOSE this case.
DONE and ORDERED in Orlando, Florida on March 19, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties
U.S. Magistrate Judge Gregory J. Kelly

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