Fernandez v. Commissioner of Social Security
Filing
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OPINION AND ORDER reversing the Commissioner's decision and remanding the case for further proceedings consistent with this Order. Signed by Magistrate Judge Monte C. Richardson on 8/30/2017. (MEH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TIMOTHY FERNANDEZ,
Plaintiff,
v.
CASE NO. 8:16-cv-1542-T-MCR
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
_________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying his applications for a period of disability, disability insurance
benefits and supplemental security income. Plaintiff alleges he became disabled
on October 7, 2011. Plaintiff’s applications were denied initially and on
reconsideration. A hearing was held before the initially assigned Administrative
Law Judge on February 27, 2014, at which Plaintiff was represented by an
attorney. (Tr. 27-47.) The Administrative Law Judge who held the hearing retired
before rendering a decision and before approving a draft decision. The
Commissioner then reassigned the matter to another Administrative Law Judge
(“ALJ”), who reviewed the hearing transcript and the record, and who found
Plaintiff not disabled from October 7, 2011 through July 8, 2014, the date of the
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The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. (Docs. 14, 17.)
decision. (Tr. 12-20.)
Plaintiff is appealing the Commissioner’s decision that he was not disabled
during the relevant time period. Plaintiff has exhausted his available
administrative remedies and the case is properly before the Court. The
undersigned has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the undersigned determines that the Commissioner’s
decision is due to be REVERSED AND REMANDED.
I.
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
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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).
II.
Discussion
Plaintiff argues two issues on appeal. Plaintiff contends that the ALJ erred
in not conducting a second hearing in light of the policies as set forth in the Social
Security Administration’s Hearings, Appeals, and Litigation Manual, HALLEX I-28-40. Plaintiff also argues that the ALJ erred in determining that Plaintiff could
perform jobs that exist in significant numbers in the national economy by relying
on the Medical-Vocational Guidelines (“Grids”) without testimony from a
vocational expert (“VE”). The undersigned agrees with Plaintiff with respect to his
second contention and thus determines that remand is warranted without
addressing the first issue raised on appeal.
A.
The ALJ’s Decision
The ALJ determined that Plaintiff engaged in substantial gainful activity
(“SGA”) from October 7, 2011 to December 31, 2012, and was not disabled
during that time period. (Tr. 14.) However, the ALJ determined that Plaintiff had
severe impairments during the time period that he did not engage in SGA,
including disorders of the spine, osteoarthritis of the right knee, and a learning
disorder. (Tr. 15.) The ALJ then determined that Plaintiff did not have an
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impairment or combination of impairments that functionally equals the severity of
the listings. (Tr. 15-17.) Continuing on with the evaluation, the ALJ determined
that Plaintiff had the residual functional capacity (“RFC”) to perform light work as
defined by the Regulations, except that “he can only occasionally climb ramp and
stairs, stoop, bend, kneel, crouch and crawl; never climb ladders, ropes, or
scaffolds; and can frequently balance; he should avoid concentrated exposure to
vibration and hazards. He is limited to simple tasks.” (Tr. 17.)
The ALJ determined that Plaintiff could not perform any past relevant work,
but that there are jobs that exist in significant numbers in the national economy
that Plaintiff can perform. (Tr. 19.) In making this determination, the ALJ relied
on the Grids in lieu of VE testimony. Specifically, the ALJ provided the following
discussion:
If the claimant had the [RFC] to perform the full range of light
work, considering the claimant’s age, education, and work
experience, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.11. However, the additional
limitations have little to no effect on the occupational base of
unskilled light work. A finding of “not disabled” is therefore
appropriate under the framework of this rule.
Social Security Ruling 83-10 states that the occupational base
underlying the [Grids] consists of numerous “unskilled”
occupations existing at various exertional levels. 20 CFR
404.1568(a) and 416.968(a) define “unskilled” work as
consisting of “simple duties,” i.e., “duties that can be learned
on the job in a short period of time” and which require “little or
no judgment.” Therefore, an individual (like the claimant) who
is able to perform “simple duties” is obviously able to perform
“unskilled” work, and the [Grids] dictate that significant
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numbers of unskilled jobs exist in the national economy that
such a person can perform.
(Tr. 20.)
B.
The ALJ Erred at Step Five
Once Plaintiff established at step four of the evaluation process that his
impairments prevented him from performing his past relevant work, the burden
shifted to the Commissioner to show that Plaintiff was able to perform other work
that exists in significant numbers in the national economy. See Cowart v.
Schweiker, 662 F.2d 731, 736 (11th Cir. 1981). To satisfy this burden, the ALJ
was required to develop a full record concerning the vocational opportunities
available to Plaintiff. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989).
In making that determination, the ALJ may either apply the Grids or consult with a
VE. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011).
Exclusive reliance on the Grids is inappropriate when the “claimant is
unable to perform a full range of work at a given residual functional level or when
a claimant has non-exertional impairments that significantly limit basic work
skills.” Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004).2 In those
instances, an ALJ is required to consult a VE. Id. However, “[r]eliance on the
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Exertional impairments consist of limitations that affect a claimant’s ability to meet
the strength demand of a given job, including the ability to sit, stand, walk, lift, carry, push
and pull. 20 C.F.R. §§ 404.1569a(b); 416.969a(b). Nonexertional impairments consist of
limitations and restrictions that affect the claimant’s ability to meet the demand of jobs other
than the strength requirements, including postural and manipulative limitations. 20 C.F.R.
§§ 404.1569a(c); 416.969a(c).
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[G]rids is proper where substantial evidence supports the ALJ’s determination
that the claimant’s non-exertional impairments did not significantly limit his ability
to perform specified types of work.” Syrock v. Heckler, 764 F.2d 834, 836 (11th
Cir. 1985). This requirement is satisfied if the claimant’s non-exertional
impairments do not preclude “a wide range” of work at a given exertional level.
Phillips, 357 F.3 at 1243. Ordinarily, when non-exertional impairments are
alleged, “the preferred method of demonstrating that the claimant can perform
specific work is through the testimony of a [VE].” MacGregor v. Bowen, 786 F.2d
1050, 1054 (11th Cir. 1986); see also Allen, 880 F. 2d at 1202 (“Ordinarily, when
non-exertional limitations are alleged, [VE] testimony is used.”).
When analyzing non-exertional impairments, the ALJ must make an
express finding that they do not significantly limit the claimant’s basic work
activities in order to use the Grids to find a claimant “not disabled” without hearing
relevant testimony from a VE. Phillips, 357 F.3d at 1243. “However, it is not
enough for the ALJ to say that the claimant’s nonexertional [impairments] are not
significant. That finding must be supported by substantial evidence.” Chabriel v.
Comm’r of Soc. Sec., No. 6:13-cv-1711-Orl-28TBS, 2015 WL 269054, at *5 (Jan.
21, 2015).
Here, the ALJ found that Plaintiff’s “additional limitations have little or no
effect on the occupational base of unskilled light work.” (Tr. 20.) The ALJ further
explained that the regulations define “‘unskilled’ work as work consisting of
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‘simple duties,’ i.e., ‘duties that can be learned on the job in a short period of time’
and which require “little or no judgment.” Therefore, the ALJ determined that
Plaintiff, who is able to perform “simple duties,” is “obviously able to perform
‘unskilled work’, and the [Grids] dictate that significant numbers of unskilled jobs
exist in the national economy that [Plaintiff] can perform.” (Id. (citing 20 C.F.R. §§
404.1568(a) & 416.968(a)).)
The explanation provided by the ALJ does not constitute substantial
evidence that Plaintiff’s non-exertional impairments allow him to perform a wide
range of unskilled light work. As an initial matter, it is clear that an ALJ’s general
statement that a claimant’s “additional limitations have little or no effect on the
occupational base of unskilled light work,” lacks sufficient clarity to allow a
reviewing court to determine whether the proper legal analysis was conducted.
See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“An ALJ’s
conclusion that a claimant’s limitations do not significantly compromise his basic
work skills or are not severe enough to preclude him from performing a wide
range of light work is not supported by substantial evidence unless there is
testimony from a [VE].”) (citing Allen, 880 F.2d at 1202); Owens II v. Comm’r of
Soc. Sec., 508 F. App’x 881, 884 (11th Cir. 2013) (reaffirming the principles set
forth in Marbury & Allen and finding that the ALJ’s statement that “additional
limitations have little or no effect on the occupational base of unskilled medium
work” lacked sufficient clarity to allow a reviewing court to determine whether the
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proper legal analysis was conducted); DiFranco v. Colvin, No. 8:12-cv-1978-TTGW, 2013 WL 4494124, at *5 (M.D. Fla. Aug. 20, 2013) (noting that the ALJ’s
conclusory statement that “‘unskilled jobs at all levels of exertion constitute the
potential occupational base for persons who can meet the mental demand of
unskilled work (SSR 85-15)’ so that ‘the additional limitations have little or no
effect on the occupational base of unskilled sedentary work’” is the type of
assertion that was flatly rejected in Marbury & Allen); Fernandez v. Colvin, No.
12-CV-20468-TURNOFF, 2015 WL 12552076, at *6 (S.D. Fla. Mar. 13, 2015)
(finding the ALJ’s conclusion that “the additional limitations have little or no effect
of the occupational base of unskilled light work” and further explanation that the
plaintiff’s “physical and mental limitations would not significantly erode the
number of unskilled light occupations in the national economy (SSRs 96-9p & 8515)” to be insufficient).
Here, the ALJ’s statement that Plaintiff’s “additional limitations have little or
no effect of the occupational base of unskilled light work,” fails to provide clarity
as to whether Plaintiff can do unlimited types of light work. See, e.g., Johnson v.
Colvin, No. 8:14-cv-41-T-27TBM, 2015 WL 1423127, at *3 (M.D. Fla. Mar. 27,
2015) (adopting Judge McCoun’s Report and Recommendation as modified and
remanding the case because the ALJ failed to provide clarity as to whether the
plaintiff could perform a full range of light work); Fernandez, 2015 WL 12552076,
at *6 (finding that the ALJ’s general statement that “the additional limitations have
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little or no effect of the occupational base of unskilled light work,” failed to provide
clarity as to whether the plaintiff could perform unlimited types of light work).
To the extent the Commissioner argues that the ALJ’s further explanation
of unskilled work constitutes substantial evidence supporting the decision, the
undersigned disagrees. Although the ALJ referenced that “unskilled” work
includes “simple duties,” the ALJ failed to discuss Plaintiff’s other non-exertional
impairments, such as occasional climbing of ramps and stairs, bending, kneeling,
crouching, and crawling; frequent balancing; never climbing ladders, ropes or
scaffolds; and avoiding concentrated exposure to vibration and hazards, and their
effect (alone and in combination) on Plaintiff’s ability to perform a “wide range” of
light unskilled jobs.
The Commissioner contends that substantial evidence supports the
decision because Social Security Regulation 83-14 indicates that very few jobs
require Plaintiff’s postural and environmental limitations. However, the Court
cannot accept the Commissioner’s post hoc rationalization here. See, e.g., Baker
v. Comm’r of Soc. Sec., 384 F. App’x 893, 896 (11th Cir. 2010) (“[A] court may
not accept appellate counsel’s post hoc rationalizations for agency actions. If an
action is to be upheld, it must be upheld on the same bases articulated in the
agency’s order.”) (internal citations omitted). Moreover, such contention is
unavailing because the decisions in Marbury and Allen are binding on this Court.
Blake v. Colvin, 8:12-cv-2736-T-TGW, 2014 WL 109113, at *4 (M.D. Fla. Jan. 10,
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2014) (“The Commissioner contends that Social Security Rulings 83-14 and 8515 indicate that the plaintiff’s particular limitations do not erode significantly the
[G]rid’s occupational base and therefore do not preclude the law judge from
concluding that the plaintiff can perform the full range of light work. This
contention is unavailing because the Eleventh Circuit decisions of Marbury v.
Sullivan and Allen v. Sullivan are binding on this court.”) (internal and external
citations omitted).
Finally, the Commissioner points to the Eleventh Circuit’s holding in the
unpublished case of Vuxta v. Comm’r of Soc. Sec., 194 F. App’x 874 (11th Cir.
2006), that “a limitation to simple tasks is already contained within the unskilled
limitation, and is not a limitation above and beyond that classification.” Id. at 878.
While this may be true, the Eleventh Circuit also recognized in Vuxta that a
limitation to repetitive tasks is not included within the definition of unskilled work
and remanded the case, in part, for the ALJ to determine whether such limitation
precludes the plaintiff from performing a wide range of work at the particular level
before relying on the Grids. Id. Similarly, a limitation to routine tasks is not
included within the definition of unskilled work. See, e.g., Welcz v. Comm’r of
Soc. Sec., No. 6:12-cv-106-Orl-22GJK, 2012 WL 7006301, at *13 (M.D. Fla. Dec.
17, 2012) (recognizing that the definition of unskilled work does not include a
limitation to routine tasks and recommending remand based on the ALJ’s failure
address the plaintiff’s limitation to routine tasks), adopted in 2013 WL 436166.
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Although the ALJ limited Plaintiff to “simple tasks” in the RFC
determination, the ALJ attached “great weight” to mental health experts, Drs.
David Partyka and Judith Myers, who limited Plaintiff to “simple, routine, and
repetitive [tasks].” (Tr. 19, 63, 76, 91, 104.) It is unclear why the ALJ failed to
include the “routine” and “repetitive” tasks limitations, along with the “simple”
tasks limitation, in the RFC determination, which would have necessitated further
explanation at step five. See, e.g., Kahle v. Comm'r of Soc. Sec., 845 F. Supp.
2d 1262, 1272 (M.D. Fla. 2012) (stating that reversal is required where an ALJ
fails to sufficiently articulate the reasons supporting his decision to reject portions
of a medical opinion while accepting others).
III.
Conclusion
The ALJ failed to provide a substantial evidentiary basis for finding that
Plaintiff’s non-exertional impairments have little or no effect on the occupational
base of unskilled light wok. Because that finding is not supported by substantial
evidence, neither is the ALJ’s conclusion that a significant number of jobs exist
for someone of Plaintiff’s age, RFC, and educational and vocational background.
Remand is therefore required for the ALJ to conduct a proper step-five analysis,
which will almost certainly require obtaining VE testimony.
Accordingly, it is ORDERED:
1.
The Commissioner’s decision is REVERSED pursuant to sentence
four of 42 U.S.C. § 405(g) and REMANDED for further proceedings consistent
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with the findings in this Order.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order and close the file.
3.
Plaintiff’s counsel is advised that, in the event benefits are awarded
on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ENTERED at Jacksonville, Florida, on August 30, 2017.
Copies to:
Counsel of Record
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