Schlegel v. Commissioner of Social Security

Filing 22

MEMORANDUM OF DECISION. ORDERED that the final decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Daniel C. Irick on 6/1/2017. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES FREDRICK SCHLEGEL,
Plaintiff,
v.

Case No: 6:16-cv-1236-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
James Fredrick Schlegel (Claimant) appeals to the District Court from a final decision of
the Commissioner of Social Security denying his applications for disability insurance benefits and
supplemental security income benefits. Doc. 1; R. 1-7, 253-76. Claimant argued that the
Administrative Law Judge (the ALJ) erred by: 1) failing “to apply the correct legal standards at
step four of the sequential evaluation process when he found that [Claimant] could perform his
past work”; and 2) failing “to apply the correct legal standards to Mr. Schlegel’s pancreatitis
limitations and psychotic limitations at step four.” Doc. 20 at 2. For the reasons set forth below,
the Commissioner’s final decision is AFFIRMED.
I.

THE ALJ’S DECISION

In September 2012, Claimant filed applications for disability insurance benefits and
supplemental security income benefits. R. 268-76. Claimant originally alleged a disability onset
date of October 1, 2007, but later amended his alleged onset date to April 11, 2011. R. 47-48, 268,
271, 289.

The ALJ issued his decision on March 19, 2015. R. 13-21. In his decision, the ALJ found
that Claimant had the following severe impairments: diabetes mellitus type 2 and hyperlipidemia.
R. 15. The ALJ found that Claimant had a residual functional capacity (RFC) to perform medium
work as defined by 20 C.F.R. §§ 404.1567(c) and 416.967(c).1 R. 17. Specifically, the ALJ found
as follows:
[C]laimant has the residual functional capacity to perform the full range of medium
work as defined in 20 CFR 404.1567(c) and 416.967(c). This individual has the
residual functional capacity to perform work at the medium exertional level. He
can lift, carry, push and pull fifty (50) pounds occasionally and twenty-five (25)
pounds frequently. He can stand and walk for approximately six (6) hours and can
sit for approximately six (6) hours in an eight (8) hour workday with normal breaks.
He must avoid exposure to vibration, unprotected heights, and hazardous
machinery. He must avoid concentrated exposure to extreme heat, cold, wetness,
humidity, and irritants such as fumes, odors, dust, and gases. His work is limited
to simple, routine, and repetitive tasks. This person should have no interaction with
the general public and only occasional interaction with co-workers and supervisors.
R. 17. The ALJ posed a hypothetical question to the vocational expert (VE) that was consistent
with the foregoing RFC determination, and the VE testified that Claimant was capable of
performing his past relevant work as a kitchen helper. R. 49. The ALJ thus found that Claimant
was capable of performing his past relevant work as a kitchen helper. R. 20. Therefore, the ALJ
found that Claimant was not disabled between the alleged onset date and the date of his decision.
Id.
II.

STANDARD OF REVIEW

“In Social Security appeals, [the court] must determine whether the Commissioner’s
decision is ‘supported by substantial evidence and based on proper legal standards.’” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted).

1

The

“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or
she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c); 416.967(c).

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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)).
III.

ANALYSIS

A. Past Relevant Work
At step four of the sequential evaluation process, the ALJ assesses the claimant’s residual
functional capacity (RFC) and ability to perform past relevant work. Phillips, 357 F.3d at 1238.
A claimant is not disabled if the claimant is capable of performing his past relevant work, which
is defined as work performed within the last fifteen years that lasted long enough for the claimant
to learn the work and that was substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1560(b)(1), 416.920(a)(4)(iv), 416.960(b)(1); see also Eyre v. Comm’r of Soc. Sec., 586 Fed.

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Appx. 521, 523-24 (11th Cir. 2014) (per curiam). The claimant bears the burden of demonstrating
that prior work experience was not “past relevant work.” Eyre, 586 Fed. Appx. at 524; Barnes,
932 F.2d at 1359.
Substantial gainful activity is defined as “work activity that is both substantial and gainful.”
20 C.F.R. §§ 404.1572, 416.972; see also Eyre, 586 Fed. Appx. at 524. Work activity is substantial
if it “involves doing significant physical or mental activities,” and is gainful if it is done “for pay
or profit.” 20 C.F.R. §§ 404.1572, 416.972; see also Eyre, 586 Fed. Appx. at 524. The chief
consideration in determining whether prior work was substantial gainful activity is what the
claimant earned doing that prior work. 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1); see also Eyre,
586 Fed. Appx. at 524. “The ALJ ordinarily will consider that the claimant either was or was not
engaged in substantial gainful activity if her average monthly earnings are above or below a certain
amount established by the Social Security Administration’s earnings guidelines.” Eyre, 586 Fed.
Appx. at 524 (citations omitted). However, the amount that a claimant earned doing the prior work
is not dispositive if other evidence indicates that the claimant was engaged in substantial gainful
activity. Id. (“the ALJ can consider other information, including whether the work performed was
‘comparable to that of unimpaired people in [the claimant’s] community who [were] doing the
same or similar occupations as their means of livelihood, taking into account the time, energy,
skill, and responsibility involved in the work.’”) (citing 20 C.F.R. §§ 404.1574(a)(1), (b)(3)(ii)(A),
416.974(a)(1), (b)(3)(ii)(A)) (alterations in original).
Here, Claimant argued that the ALJ erred when he found that Claimant was capable of
performing his past relevant work as a kitchen helper. Specifically, Claimant argued that his prior
work as a kitchen helper was not substantial gainful activity, and thus, not “past relevant work.”
Doc. 20 at 10. Claimant did not argue that his position as a kitchen helper did not involve

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significant physical or mental activities or that it was not done for pay or profit. Rather, Claimant
argued only that Claimant’s average monthly earnings while working as a kitchen helper were less
than the Social Security Administration’s guidelines, $900.00 in 2007 and $940.00 in 2008. See
SOCIAL

SECURITY

ADMINISTRATION,

SUBSTANTIAL

GAINFUL

ACTIVITY,

http://www.ssa.gov/oact/cola/sga.html. To arrive at this determination, Claimant averaged his
monthly earnings over the entire year, instead of over the period of time during which he worked
as a kitchen helper.2 However, a claimant’s average monthly earnings while doing prior work is
calculated by averaging the claimant’s earnings over the actual period of work involved, not over
the entire year. See, e.g., SSR83-35, 1983 WL 31257, at *1-3 (1983); Gentile v. Comm’r of Soc.
Sec., 6:13-cv-1200-Orl-GJK, 2014 WL 4279057, at *3 (M.D. Fla. Aug. 29, 2014); see also
Martinez v. Comm’r of Soc. Sec., 132 Fed. Appx. 310, (11th Cir. 2005) (per curiam) (calculating
the claimant’s average monthly earnings from the year 2002 by dividing the amount the claimant
earned by the number of months the claimant actually worked in 2002). Thus, the average monthly
earnings figures relied on by Claimant are incorrect.
Although Claimant’s average monthly earnings as a kitchen helper may possibly have been
below the amount established by the Social Security Administration’s guidelines, R. 297-307, the
Court is unable to make such a determination with any certainty because Claimant failed to raise
the issue to the ALJ during the hearing and failed to advise the Court of exactly how much of
Claimant’s 2007 and 2008 earnings were from his position as a kitchen helper. Claimant’s failure
to raise the issue to the ALJ at the hearing is fatal to his current argument. Substantial evidence

2

Claimant worked as a kitchen helper for approximately three months in 2007 and for
approximately one month in 2008. Yet to arrive at his average monthly earnings, Claimant divided
his 2007 earnings by twelve and his 2008 earnings by twelve to arrive at his average monthly
earnings.

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existed to support the ALJ’s determination that Claimant’s position as a kitchen helper was
substantial gainful activity,3 yet Claimant, who was represented by counsel, failed to make any
argument or showing at the hearing to carry his burden of demonstrating otherwise. R. 31-55, 301,
382, 390; see Rivera v. Colvin, 1:15cv146-MP/CAS, 2016 WL 4424973, *6 (N.D. Fla. Mar. 3,
2016), report and recommendation adopted, 2016 WL 4414792 (Aug. 18, 2016). Accordingly,
the Court rejects Claimant’s first assignment of error.
B. RFC
“The residual functional capacity 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). The ALJ is responsible for determining the claimant’s RFC.
20 C.F.R. §§ 404.1546(c); 416.946(c). In doing so, the ALJ must consider all relevant evidence,
including, but not limited to, the medical opinions of treating, examining, and non-examining
medical sources. 20 C.F.R. §§ 404.1545(a)(1), (3); 416.945(a)(1), (3); Rosario v. Comm’r of Soc.
Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). 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

3

Claimant reported that he worked a dishwasher – which the VE classified as a kitchen helper –
for approximately four months, that he was paid $6.50 per hour, and that he worked an average of
forty hours per week. R. 48, 301, 382, 390-91. This would equate to average monthly earnings
of more than $1,040.00, which is more than the amount established by the Social Security
Administration’s guidelines. In addition, when describing his position as a “dishwasher,”
Claimant stated that he washed dishes, maintained the dishwasher, and helped prep food. R. 391.
He further stated that he used technical knowledge or skills, and used machines, tools, and
equipment. Id. Claimant stated that he worked eight hours per day while walking, standing,
kneeling, crouching, stooping, and reaching. Id. Claimant stated that he lifted twenty-five to fifty
pounds of dishes and carried them ten feet for eight hours each day. Id.

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preponderates against the Commissioner’s decision. Edwards, 937 F.2d at 584 n.3; Barnes, 932
F.2d at 1358.
Here, Claimant argued that a “great deal of evidence supported . . . severe limitations of
hallucinations and [pancreatitis], but the ALJ failed to account for them in his findings.” Doc. 20
at 11. However, the standard is not whether substantial evidence supported allegedly severe
limitations for which the ALJ allegedly failed to account; the standard is whether substantial
evidence supported the ALJ’s purported decision to not account for Claimant’s purportedly severe
limitations. As such, the Court interprets Claimant’s argument to be that substantial evidence does
not support the ALJ’s purported decision to not account for Claimant’s purportedly severe
limitations of hallucinations and pancreatitis.
The Court notes at the outset that it is clear from the ALJ’s decision that he considered the
relevant evidence of Claimant’s hallucinations and pancreatitis.4 R. 13-21. The ALJ specifically
noted that Claimant’s medical history was significant for pancreatitis and for bipolar disorder with
psychotic features. R. 18. The ALJ further noted that Claimant’s symptoms included, among
other things, hallucinations and abdominal tenderness. Id.
Claimant’s argument that substantial evidence supported severe limitations of
hallucinations and pancreatitis, or rather that the ALJ’s decision was not supported by substantial
evidence, is unpersuasive. Doc. 20 at 11-13. Claimant merely cited records, some of which
predate the relevant time period, that arguably support Claimant’s allegation that he suffered from
hallucinations and pancreatitis. However, Claimant raised no argument to suggest that there was
not substantial evidence supporting the ALJ’s decision.

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Claimant did not argue that the ALJ failed to consider this relevant evidence.

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Upon review, the Court finds that the record is replete with evidence that would support
the ALJ’s decision not to account for these purportedly severe limitations. The ALJ specifically
noted that Claimant did not require crisis stabilization; that Claimant was capable of taking care
of himself and performing simple work; that Claimant was capable of managing his personal
affairs and health care appointments; that Claimant’s polysubstance abuse appeared to exacerbate
Claimant’s symptoms; that Claimant could interact appropriately with medical personnel; that
Claimant testified that he did not have difficulty adhering to social norms or interacting with his
family; that Claimant could manage his own money; that there was no evidence to indicate that
Claimant’s physical condition affected his ability to walk, stand, sit, or lift; that Claimant had good
strength in all extremities with no evidence of pain through the full range of motion; and that,
although there was evidence of abdominal tenderness, there was no evidence of significant pain or
other physical symptoms that would require treatment. R. 18-20. In addition to the foregoing, the
Court notes that during the relevant time period, Claimant’s purported hallucinations were
generally self-reported, not observed, and Claimant was generally found to be able to care for
himself and have adequate thought processes, attention, and concentration.5 R. 712-13, 718-20,
797-99, 807, 824-28. Claimant’s physical exam results were also generally normal except for
abdominal tenderness and occasional abdominal pain, which was not noted to be severe or to affect
Claimant’s strength or ability to care for himself. R. 677-96, 712-13, 816-18, 844-52. In fact,
some of Claimant’s records from the applicable time period did not list pancreatitis as an active
problem, and specifically noted no abdominal tenderness or pain. R. 677-96, 845-52.
In addition, there is nothing in the ALJ’s decision or the medical records to suggest that
the ALJ’s RFC determination did not account for any purported limitations arising from

5

Claimant at times also denied having any hallucinations. R. 784, 824-28.

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Claimant’s purported hallucinations and pancreatitis. Even to the extent that the ALJ did fail to
account for any such purported limitations, there is nothing to suggest that these purported
limitations directly contradicted the ALJ’s RFC determination.6 C.f., e.g., Wright v. Barnhart, 153
F. App’x 678, 684 (11th Cir. 2005) (per curiam) (failure to weigh a medical opinion is harmless
error if the opinion does not directly contradict the ALJ’s RFC determination); Caldwell v.
Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (per curiam) (similar)
For the foregoing reasons, the Court rejects Claimant’s second assignment of error.
IV.

CONCLUSION

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

The final decision of the Commissioner is AFFIRMED.

2.

The Clerk is directed to enter judgment in favor of the Commissioner and close
the case.

DONE AND ORDERED in Orlando, Florida on June 1, 2017.

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Claimant did not present any argument that adequately set forth how Claimant’s purported
limitations directly contradicted the RFC determination. Claimant simply stated, without support
or citation to Claimant’s medical records, that someone with severe abdominal pain from
pancreatitis could not lift, carry, push, pull, and stand/walk for six hours every workday. Doc. 20
at 13. Claimant also stated, again without support or citation to Claimant’s medical records, that
the “extremely unstable nature” Claimant’s hallucinations would severely impact his ability to
work on a consistent basis. Id.

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Copies furnished to:
Counsel of Record
Unrepresented Parties
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

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