Sorensen v. Commissioner of Social Security

Filing 24

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 3/9/2018. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KATHIE SORENSEN,
Plaintiff,
v.

Case No: 8:16-cv-3500-T-DNF

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Kathie Sorensen, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability,
Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”).

The

Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), the parties filed memoranda setting forth their respective positions,
and Plaintiff filed a reply to Defendant’s memorandum. For the reasons set out herein, the decision
of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve

months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. 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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful

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employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, she will be found not disabled. Id.

In

determining whether the Commissioner has met this burden, the ALJ must develop a full and fair

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record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on January 26, 2013, and an
application for SSI on February 21, 2013, alleging a disability onset date of August 1, 2010, in
both applications. (Tr. 254-66). Plaintiff’s claims were denied initially on May 6, 2013, and upon
reconsideration on August 16, 2013. (Tr. 159-69, 174-83). At Plaintiff’s request, a hearing was
held before Administrative Law Judge (“ALJ”) David J. Begley on October 8, 2014. (Tr. 30-74).
On April 30, 2015, the ALJ entered a decision finding that Plaintiff was not disabled. (Tr. 12-23).
Plaintiff requested review of this decision and the Appeals Council denied Plaintiff’s request on
October 27, 2016. (Tr. 1-6). Plaintiff initiated the instant action by Complaint (Doc. 1) on
December 27, 2016. The parties having filed memoranda setting forth their respective positions,
this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 1, 2010, the alleged onset date. (Tr. 15). At step two, the
ALJ found that Plaintiff had the following severe impairments: fibromyalgia, degenerative joint
disease of the right shoulder, and depression. (Tr. 16). At step three, the ALJ found that Plaintiff

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did not have an impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except no climbing of ladders, ropes, and scaffolds; only occasional
climbing of ramps and stairs, balancing, stooping, kneeling, crouching,
and crawling; no concentrated exposure to humidity and extreme heat and
cold; and is limited to detailed but not complex work limiting the
individual to semi-skilled work.
(Tr. 18). At step four, the ALJ found that Plaintiff was not capable of performing her past relevant
work as a maintenance worker and janitorial service supervisor. (Tr. 21).
At step five, the ALJ found that considering Plaintiff’s age, education, work experience
and RFC, there are jobs that exist in the national economy in significant numbers that Plaintiff can
perform. (Tr. 21). Relying on the testimony of the vocational expert, the ALJ found that Plaintiff
could perform the jobs of laundry sorter, folder, and wearing apparel shaker. (Tr. 22). The ALJ
concluded that Plaintiff was not under a disability from August 1, 2010, the alleged onset date,
through April 30, 2015, the date of the decision. (Tr. 23).
II.

Analysis
Plaintiff raises two issues on appeal: (1) whether the ALJ erred by failing to account for

Plaintiff’s severe impairments in formulating the RFC; and (2) whether the ALJ erred by failing
to comply with SSR 00-4p and to properly resolve a conflict between the testimony of the
vocational expert and the Dictionary of Occupational Titles. The Court will address each issue in
turn.

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A. Whether the ALJ erred by failing to account for Plaintiff’s severe impairments in
formulating the RFC.
Plaintiff argues that the ALJ erred by failing to explain how his finding that Plaintiff had a
moderate limitation in concentration, persistence, and pace, and a severe degenerative joint disease
of the right shoulder impairment were incorporated into the RFC finding. (Doc. 19 p. 9). Citing
to Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1181 (11th Cir. 2001), Plaintiff
argues that the ALJ’s RFC finding that Plaintiff could perform “detailed but not complex work
limiting [her] to semi-skilled work” did not adequately account for the ALJ’s previous finding that
Plaintiff had moderate limitation of concentration, persistence, and pace. (Doc. 19 p. 10-11).
Likewise, Plaintiff argues that the ALJ failed to explain how Plaintiff’s severe impairment of
degenerative joint disease of the right shoulder were accounted for in the RFC. (Doc. 19 p. 13).
In response, Defendant argues that the ALJ’s RFC assessment and hypothetical question
to the VE accounted for his finding that Plaintiff had moderate difficulties in concentration,
persistence, or pace. (Doc. 20 p. 4). Further, Defendant argues that the ALJ accounted for
Plaintiff’s degenerative joint disease of the right shoulder by restricting Plaintiff’s climbing and
by limiting her to light work, which has attendant lifting limitations of no more than 20 pounds at
a time with frequent lifting or carrying of objects weight up to 10 pounds; and some pushing and
pulling of arm controls. (Doc. 20 p. 7).
In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180, the Eleventh Circuit explained
“that an ALJ does not account for a claimant’s limitations in concentration, persistence, and pace
by restricting the hypothetical question to simple, routine tasks or unskilled work.” 631 F.3d at
1180. If, however, the evidence shows that a claimant’s ability to work is unaffected by the
limitation or the limitation is implicitly accounted for in the hypothetical, remand is inappropriate.
Winschel, 631 F.3d at 1181.
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In his decision, at step three, the ALJ explained that Plaintiff had moderate limitations in
concentration, persistence, or pace. (Tr. 18). The ALJ noted that Plaintiff reported having
difficulty concentrating nearly every day, but that she had no difficulty concentrating when she
watches television, uses a computer, or goes fishing. (Tr. 18). Later in the decision, while
discussing the effect Plaintiff’s mental impairments have on her RFC the ALJ provided that:
As for depression, the record shows complaints of low energy, feeling
depressed or hopeless, difficulty concentration, and low self-esteem
(F4/64). The claimant denied any suicidal ideation. She also sought
treatment only with medication and declined a referral for mental health
treatment in April 2014 (4F/67). In March 2014, the claimant’s symptoms
of depression were noted as “stable” with medication (8F/11). The record
supports some limitations in the claimant’s ability to work due to
depression, but given that the claimant’s symptoms are “stable” with
medication, the undersigned finds that the claimant remains capable of
semi-skilled work.
(Tr. 20).
Here, the Court does not find that remand is appropriate pursuant to Winschel. In his
decision, the ALJ specifically addressed Plaintiff’s mental limitations in formulating the RFC and
explained his reasoning for finding Plaintiff capable of semi-skilled work. Plaintiff has failed to
demonstrate that her mental impairments imposed limitations beyond the limitations in the ALJ’s
RFC and hypothetical question to the VE.
Furthermore, the Court rejects Plaintiff’s argument that the ALJ erred by failing to properly
account for Plaintiff’s severe impairment of degenerative joint disease of the right shoulder in the
RFC assessment.

Diagnoses of impairments do not require imposition of certain specific

limitations in an RFC assessment. See Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir.
2005). Plaintiff has failed to show that the severe impairment of degenerative joint disease of the
right shoulder caused limitations beyond those found by the ALJ in his RFC finding.

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B. Whether the ALJ erred by failing to comply with SSR 00-4p and properly resolve
a conflict between the testimony of the vocational expert and the Dictionary of
Occupational Titles.
Plaintiff argues that the ALJ erred by adopting vocational witness testimony that was
inconsistent with the Dictionary of Occupational Titles (“DOT”) without obtaining an explanation
for such inconsistency. (Doc. 19 p. 15). Plaintiff argues that the RFC finding and hypothetical
question specified a limitation of “no concentrated exposure to humidity” which is inconsistent
with the DOT job duty descriptions and requirements of the jobs identified by the vocational
expert. (Doc. 19 p. 15). Plaintiff argues that the ALJ violated SSR 00-4p by failing to ask the VE
if the testimony provided was consistent with the DOT. (Doc. 19 p. 15).
In response, Defendant argues that the ALJ complied with SSR 00-4p by asking the VE
about any possible conflict between her testimony and the information provided in the DOT and,
thus, the ALJ was not required to independently investigate the VE’s testimony or further
interrogate the VE. (Doc. 20 p. 9). In addition, Defendant argues that Plaintiff has failed to identify
any inconsistency between the VE’s testimony and the DOT, as Plaintiff wrongfully equates
“concentrated exposure” with “frequent exposure.” (Doc. 20 p. 10).
The purpose of SSR 00–4p is to clarify the standards for use of a vocational expert at a
hearing, and requires administrative law judges to “identify and obtain a reasonable explanation
for any conflicts between occupational evidence provided by VEs or VSs and information in the
Dictionary of Occupational Titles (DOT) ...” SSR 00–4p.
When there is an apparent unresolved conflict between VE or VS evidence
and the DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE or VS evidence to support a
determination or decision about whether the claimant is disabled. At the
hearings level, as part of the adjudicator's duty to fully develop the record,
the adjudicator will inquire, on the record, as to whether or not there is
such consistency.

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Neither the DOT nor the VE or VS evidence automatically “trumps” when
there is a conflict. The adjudicator must resolve the conflict by
determining if the explanation given by the VE or VS is reasonable and
provides a basis for relying on the VE or VS testimony rather than on the
DOT information.
SSR 00–4p. The Court notes that “Social Security Rulings are agency rulings published under the
Commissioner's authority and are binding on all components of the Administration. [citation
omitted]. Even though the rulings are not binding on us, we should nonetheless accord the rulings
great respect and deference ...” Klawinski v. Comm’r of Soc. Sec., 391 F. App'x 772, 775 (11th Cir.
2010).
In this case, the Court does not find it appropriate to remand on the basis the ALJ violated
SSR 00-4p by failing to resolve a conflict between the VE’s testimony and the DOT. At the
administrative hearing, before posing a hypothetical question to the VE, the ALJ stated to the VE,
“I’ll assume your testimony today is based on your knowledge, education, training, and
experience; and will be consistent with the DOT unless you tell me otherwise.” (Tr. 58). The VE
responded, “Yes, your honor.” (Tr. 58). The VE did not identify any inconsistency between her
testimony and the DOT. (Tr. 58-73).
While Plaintiff is correct that the ALJ did not directly ask the VE if her testimony conflicted
with the DOT, the initial exchange between the ALJ and the VE’s indicates that the VE understood
that she needed to inform the ALJ if her testimony was inconsistent with the DOT. (Tr. 58). Thus,
although in an imperfect manner, the ALJ complied with the requirements of SSR 00-4p.
In any event, Plaintiff has failed to show the VE’s testimony conflicted with the DOT. The
hypothetical posed to the VE included the limitation “to avoid concentrated exposure to humidity”
(Tr. 58). The jobs identified by the VE include require at least “frequent” and “constant” exposure
to humidity. (Doc. 19-1 p. 4, 8, 12). As Defendant notes, the DOT does not define “concentrated

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exposure,” which pertains to the level of exposure, whereas terms such as “frequent” and
“constant” refer to frequency and are defined in the DOT.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on March 9, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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