Muzio v. Commissioner of Social Security

Filing 31

MEMORANDUM OF DECISION: The Commissioner's final decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. Section 405(g). The Clerk is directed to enter judgment in favor of Claimant and against the Commissioner, and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 9/17/2015. (MDH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRISTINA JO MUZIO,
Plaintiff,
v.

Case No: 6:14-cv-1288-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Christina Jo Muzio (the “Claimant”), appeals to the District Court from a final decision of
the Commissioner of Social Security (the “Commissioner”) denying her application for
supplemental security income (“SSI”). Doc. No. 1. Claimant argues that the Administrative
Law Judge (the “ALJ”) erred by: 1) relying on the vocational expert’s (“VE”) testimony in finding
that Claimant can perform other jobs in the national economy; 2) not considering whether she
meets or equals the listing for autism located in 20 C.F.R. part 404, subpart P, appendix 1 § 12.10;
3) not including a limitation concerning her ability to function without the assistance of a family
member; and 4) finding her testimony concerning her pain and limitations not credible. Doc. No.
30 at 14-17, 25-27, 29-30, 34-36. Claimant requests that the matter be reversed for an award of
benefits, or, in the alternative, remanded for further proceedings. Id. at 39. For the reasons set
forth below, the Commissioner’s final decision is REVERSED and REMANDED for further
proceedings.
I.

STANDARD OF REVIEW.
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.

42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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 Court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
II.

ANALYSIS.
Claimant alleges a disability onset date of February 23, 2011. R. 15, 160. Claimant

argues that the ALJ erred by relying on the VE’s testimony in determining that she can perform
other work in the national economy. Doc. No. 30 at 25-27. 1 At step five of the sequential
evaluation process, the ALJ uses the claimant’s residual functional capacity (“RFC”), age,
education, and work experience to determine if other work is available in significant numbers in

1

The ALJ determined that Claimant did not have any past relevant work. R. 21.

-2-

the national economy that the claimant can perform.

Phillips, 357 F.3d at 1239. 2

The

Commissioner bears the burden at step five to show the existence of such jobs. Id. at 1241 n.10
(citing Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996)). One of the methods used to show
that the claimant can perform other jobs in the national economy is through the testimony of a VE.
Id. at 1239-40. If the ALJ relies on a VE, he or she must pose hypothetical questions which are
accurate and which include all of a claimant’s limitations. Pendley v. Heckler, 767 F.2d 1561,
1563 (11th Cir. 1985). However, the ALJ need not include “each and every symptom” of the
claimant’s impairments, Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir.
2007), or medical “findings . . . that the ALJ . . . properly rejected as unsupported” in the
hypothetical question, Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Where the ALJ relies significantly on the testimony of a VE to find that other jobs exist in the
national economy that a claimant can perform, but fails to include all the claimant’s limitations in
the hypothetical question, the Eleventh Circuit has held that the final decision is not supported by
substantial evidence. Pendley, 767 F.2d at 1562 (quoting Brenem v. Harris, 621 F.2d 688, 690
(5th Cir. 1980)). 3
At step two of the sequential evaluation process, the ALJ found Claimant suffered from
the following severe impairments: Asperger’s disorder; personality disorder; obsessivecompulsive disorder; and obesity. R. 17. At step four of the sequential evaluation process, the
ALJ determined that Claimant has the RFC to perform light work as defined by 20 C.F.R. §

2

A claimant’s RFC is “an assessment, based upon all of the relevant evidence, of a claimant’s remaining ability to do
work despite his impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §
404.1545(a)).

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September
30, 1981.

-3-

416.967(b), “except with an ability to stand and walk 2 hours in an 8-hour day, occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl. She should never climb ropes, ladders,
or scaffolds. The claimant is limited to simple, routine, and repetitive tasks, with no interaction
with the public and occasional interaction with coworkers and supervisors.” R. 19 (emphasis
added). 4
At the hearing, the ALJ posed five (5) hypotheticals to the VE. R. 45-48. The ALJ’s first
hypothetical included the following limitations: 1) the person could lift, carry, push, and pull 20
pounds occasionally, and 10 pounds frequently; 2) the person could stand and walk for about two
hours out of an eight hour workday, and could sit for up to six hours out of an eight hour workday;
3) the person could climb stairs, balance, stoop, kneel, crouch and crawl occasionally, and should
never climb ladders or scaffolds; 4) the person would be limited to simple, routine, and repetitive
tasks; and 5) the person could have occasional interaction with coworkers and the public. R. 4546. In response, the VE testified that such an individual could perform work as an addresser and
pari-mutuel ticket checker. R. 46-47. 5
The ALJ’s third, fourth and fifth hypotheticals each contain limitations 1-4 from the first
hypothetical, but contain different limitations concerning the individual’s ability to interact with
the public, coworkers, and supervisors. R. 48. Specifically, the ALJ’s third hypothetical limited
the individual to no interaction with the public, but occasional interaction with coworkers. R. 48.

4

Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability
to do substantially all of these activities.” 20 C.F.R. § 404.1567(b).

5
Initially, the ALJ included a limitation to a “work environment free of fast-paced production requirements” in the
first hypothetical, but later struck that limitation. R. 46. The ALJ included the no fast-paced production limitation
in the second hypothetical, which was otherwise consistent with the first hypothetical. R. 47. In response, the VE
testified that the addition of a production requirement posed a problem, and thus did not identify any work that such
a hypothetical individual could perform. Id.

-4-

In response, the VE testified, as he did in response to the first hypothetical, that such an individual
could perform work as an addresser and pari-mutuel ticket checker. Id. The ALJ’s fourth
hypothetical limited the individual to no interaction with the public and coworkers, and occasional
supervision. Id. The ALJ’s fifth hypothetical limited the individual to being unable to respond
appropriately to unusual work situations, the public, coworkers, and supervisors. Id. In response
to fourth and fifth hypotheticals, the VE testified that such an individual could not perform any
work in the national economy. Id.
The ALJ ultimately relied on the VE’s testimony in determining that Claimant can perform
other work in the national economy, thus concluding that Claimant is not disabled. R. 22. This
is problematic since the ALJ never posed a hypothetical that contained all of Claimant’s
limitations. The ALJ’s RFC determination limited Claimant, in relevant part, to “no interaction
with the public and occasional interaction with coworkers and supervisors.” R. 19. The first and
third hypotheticals, which, according to the VE, would not preclude Claimant from performing
other work in the economy, are not consistent with and less restrictive than the ALJ’s RFC
determination. Compare R. 19 with R. 45-48. Specifically, both hypotheticals omit limitations
concerning Claimant’s ability to interact with supervisors, and the first hypothetical only limits
Claimant to occasional interaction with the public.

R. 45-48.

In light of these material

differences, the Court finds that the ALJ’s determination at step five, which relies on the VE’s
testimony, is not supported by substantial evidence. Pendley, 767 F.2d at 1562. 6 Accordingly,
the case must be reversed.
The Court must next address Claimant’s bald request that the case be remanded for an

6

The apparent significance of the ALJ’s failure to include a limitation concerning Claimant’s ability to interact with
supervisors in the first and third hypotheticals is highlighted by the VE’s response to the fourth hypothetical, which
limited Claimant to no interaction with the public and coworkers, and occasional supervision.

-5-

award of benefits. Doc. No. 30 at 39. Claimant devotes no portion of the joint brief to her request
that the case be remanded for an award of benefits. See Doc. No. 30. Instead, Claimant simply
includes a request that the case be remanded for an award of benefits in the conclusion of the joint
brief. Id. at 39. Simply put, reversal for an award of benefits is only appropriate either where
the Commissioner has already considered the essential evidence and it establishes disability
beyond a doubt, or where the Claimant has suffered an injustice. Davis v. Shalala, 985 F.2d 528,
534 (11th Cir. 1993) (disability beyond a doubt warrants award of benefits); see Walden, 672 F.2d
at 840. Here, neither the reason necessitating reversal nor the record establish that Claimant is
disabled beyond a doubt or that Claimant has suffered an injustice. Accordingly, Claimant’s
request to remand for an award of benefits is not well-taken, and the matter shall be remanded for
further proceedings.
III.

CONCLUSION.
For the reasons stated above, it is ORDERED that:
1.

The final decision of the Commissioner is REVERSED and REMANDED for
further proceedings pursuant to sentence four of Section 405(g);

2.

The Clerk is directed to enter judgment in favor of the Claimant and against the
Commissioner; and

3.

The Clerk is directed to close the case.

DONE and ORDERED in Orlando, Florida on September 17, 2015.

-6-

Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Edgardo Rodriguez-Quilichini
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
3505 Lake Lynda Dr.
Suite 300
Orlando, FL 32817-9801

-7-