# Bach v. Commissioner of Social Security

> District Court, M.D. Florida · September 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10103722

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10103722

## How later opinions describe it (automated extraction)

- stating that the claimant must show some prejudice before a court will order a remand to the Commissioner for further development of the record
- stating that an ALJ does not have to include limitations or conditions in a hypothetical to the VE that the ALJ has properly discounted or rejected as unsupported

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DIANA BACH,

Plaintiff,

v. Case No. 8:18-cv-1965-T-SPF

ANDREW M. SAUL,1
Commissioner of the Social
Security Administration,

Defendant.
/

ORDER

Plaintiff seeks judicial review of the denial of her claim for disability insurance
benefits (“DIB”). As the Administrative Law Judge’s (“ALJ”) decision was based on
substantial evidence and employed proper legal standards, the Commissioner’s decision
is affirmed.
PROCEDURAL BACKGROUND

Plaintiff applied for DIB on June 5, 2015 (Tr. 189–95). The Commissioner denied
Plaintiff’s claim both initially and upon reconsideration (Tr. 91–95, 99–103). The ALJ
held a hearing at which Plaintiff and her husband, David E. Bach, appeared and testified
(Tr. 36–56). Following the hearing, the ALJ issued an unfavorable decision finding

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Andrew M Saul is substituted for Acting
Commissioner Nancy A. Berryhill as the defendant in this suit.
Plaintiff not disabled and, accordingly, denied Plaintiff’s claim for benefits (Tr. 13–35).
Subsequently, Plaintiff requested review from the Appeals Council, which was denied (Tr.
1–6). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now
ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).
FACTUAL BACKGROUND AND THE ALJ’S DECISION
Plaintiff, who was born in 1965, claimed disability beginning May 1, 2014 (Tr. 27,
189). Plaintiff obtained a high school education (Tr. 27, 40). Plaintiff’s past relevant work

experience included work as a medical assistant, bank teller, customer service
representative, bank branch manager, and restaurant manager (Tr. 52). Plaintiff alleged
disability due to bulging discs, sciatic nerve issues, anxiety disorder, gastrointestinal reflux
disease (GERD), and high cholesterol (Tr. 61).
In rendering the administrative decision, the ALJ concluded that Plaintiff met the
insured status requirements through December 31, 2018, and had not engaged in
substantial gainful activity since May 1, 2014, the alleged onset date (Tr. 18). After
conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff
had the following severe impairments: degenerative disk disease of the lumbar spine,

obesity, and anxiety disorder (Tr. 18). Notwithstanding the noted impairments, the ALJ
determined Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (Tr. 19). The ALJ then concluded that Plaintiff retained a residual functional
capacity (“RFC”) to perform light work with the following additional limitations: Plaintiff
can lift up to twenty pounds occasionally and lift or carry ten pounds frequently. She can
stand or walk for approximately six hours and sit for approximately six hours in an eight-
hour workday with normal breaks. She can occasionally climb ladders, ropes, scaffolds,
ramps or stairs, balance, stoop, crouch, kneel, and crawl. She must avoid concentrated
exposure to extreme cold, extreme heat, excessive wetness, humidity, excessive vibrations,
and hazards. She can perform unskilled, SVP 1-2, jobs with simple, routine and repetitive
tasks (Tr. 21).
After considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), however, the ALJ determined Plaintiff could not perform her past relevant
work (Tr. 27). Given Plaintiff’s background and RFC, the VE testified that Plaintiff could
perform other jobs existing in significant numbers in the national economy (Tr. 28). Based
on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the
ALJ found Plaintiff not disabled (Tr. 29).
LEGAL STANDARD
To be entitled to benefits, a claimant must be disabled, meaning he or she must be
unable to engage in 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment”
is an impairment that results from anatomical, physiological, or psychological
abnormalities, which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, in order to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a
“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.
§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential
review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
process, the ALJ must determine, in sequence, the following: whether the claimant is
currently engaged in substantial gainful activity; whether the claimant has a severe

impairment, i.e., one that significantly limits the ability to perform work-related functions;
whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404
Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant
work. If the claimant cannot perform the tasks required of his or her prior work, step five
of the evaluation requires the ALJ to decide if the claimant can do other work in the
national economy in view of his or her age, education, and work experience. 20 C.F.R.
§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform
other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),
416.920(g).

A determination by the Commissioner that a claimant is not disabled must be
upheld if it is supported by substantial evidence and comports with applicable legal
standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with
deference to the factual findings, no such deference is given to the legal conclusions.
Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations
omitted).
In reviewing the Commissioner’s decision, the court may not re-weigh the evidence
or substitute its own judgment for that of the ALJ even if it finds that the evidence
preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the
reviewing court sufficient reasoning for determining that he or she has conducted the
proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is
thus limited to determining whether the findings of the Commissioner are supported by
substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §
405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
ANALYSIS

Plaintiff argues that the ALJ erred by failing to fully and fairly develop the record
on the severity and longitude of the Plaintiff’s headaches. Particularly, Plaintiff claims
that the ALJ failed to elicit testimony, at the administrative hearing, about the frequency
and depth of Plaintiff’s migraines. The Commissioner counters that the ALJ properly
developed the record and that, even if the ALJ failed to develop the record, Plaintiff
showed no prejudice that warranted remand. For the reasons that follow, the ALJ’s
decision is affirmed.
Even though Social Security proceedings are inquisitorial rather than adversarial
in nature, claimants must establish their eligibility for benefits. Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). Though the claimant bears the burden
of providing medical evidence showing he is disabled, the ALJ is charged with developing
a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ
has this basic obligation to develop a full and fair record without regard to whether the
claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995).

When a plaintiff demonstrates that the record reveals evidentiary gaps which result in
unfairness or “clear prejudice,” remand is warranted. Id. at 935; Graham v. Apfel, 129 F.3d
1420, 1423 (11th Cir. 1997) (stating that the claimant must show some prejudice before a
court will order a remand to the Commissioner for further development of the record).
A review of the record shows that at the hearing, the ALJ properly inquired as to
all of Plaintiff’s alleged impairments. Plaintiff neither alleged in her application for DIB,
nor in her testimony at the hearing, that her migraines were a disabling impairment (Tr.
36–56; 189–95).2 Where, as here, a claimant fails to allege disability due to a particular
impairment, the ALJ has no duty to consider or investigate such impairment. Robinson v.

Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (finding that the plaintiff, who was
represented at the administrative hearing before the ALJ, did not allege that she was
disabled due to chronic fatigue syndrome when she filed the claim or during the
administrative hearing, so the ALJ had no duty to consider such impairment); Street v.

2 In addition to the ALJ, Plaintiff’s counsel questioned Plaintiff, and her husband, at the
hearing but failed to pose any question related to Plaintiff’s headaches.
Barnhart, 133 F. App’x 621, 627 (11th Cir. 2005) (stating that, where the plaintiff failed to
list any mental impairment or intellectual functioning issues in his application, nor
testified about such issues at the hearing, such failure could dispose of his claim since an
ALJ is under no duty to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability).
Even if the ALJ had a duty to develop the record on Plaintiff’s migraines, Plaintiff
fails to show any evidentiary gap or prejudice arising from that omission. Prejudice

requires demonstrating that the ALJ did not have all the relevant evidence or did not
consider all of the evidence in the record in reaching his decision. Kelley v. Heckler, 761
F.2d 1538, 1540 (11th Cir. 1985). Here, the ALJ relied upon the medical records and the
opinion of multiple physicians in reaching his decision. The nature of Plaintiff’s migraines
was shown in the medical records and medications list, but this evidence failed to
demonstrate any work-related limitation (Tr. 462–63, 506–07, 509, 513, 524, 533, 543,
548, 551–52, 563, 573, 582, 651, 701, 727, 733, 742, 748). Particularly, the cited evidence
shows that Plaintiff has a long history of migraines but fails to demonstrate that her
migraines significantly limit her physical or mental ability to do basic work activities as

required by the regulations. See McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)
(“[T]he ‘severity’ of a medically ascertained disability must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical
standards of bodily perfection or normality”); Moore v. Barnhart, 405 F.3d 1208, 1213 n.6
(11th Cir. 2005) (“the mere existence of . . . impairments does not reveal the extent to
which they limit [a claimant’s] ability to work”) (citation omitted). Further, Plaintiff’s
argument is speculative. Plaintiff’s memorandum does not explain what specific
limitations her migraines caused or how those unspecified limitations would have
changed the ALJ’s RFC assessment. See Kelley, 761 F.2d at 1540–41 (stating that no
prejudice is found if there was no indication that the record was incomplete or inadequate
and claimant's assertion that they might have benefitted from a more extensive hearing
was speculative). Consequently, the Court finds that Plaintiff has failed to show that an
evidentiary gap or prejudice exists in this case.

Finally, Plaintiff appears to argue that had the ALJ found Plaintiff’s migraines to
be a severe impairment, the VE’s hypothetical would have included additional limitations
(see Doc. 18 at 8). As discussed, the ALJ did not have to consider Plaintiff’s migraines in
his analysis of Plaintiff’s impairments because Plaintiff failed to establish that her
migraines caused any work-related limitations. See Crawford v. Commr. Of Soc. Sec., 363
F.3d 1155, 1161 (11th Cir. 2004) (stating that an ALJ does not have to include limitations
or conditions in a hypothetical to the VE that the ALJ has properly discounted or rejected
as unsupported). Consequently, the ALJ was not required to include any limitation
arising from Plaintiff’s migraines in his hypotheticals to the VE.

CONCLUSION
The ALJ’s decision was supported by substantial evidence and employed the
proper legal standards. Accordingly, it is hereby
ORDERED:
1. The decision of the Commissioner is affirmed.
2. The Clerk is directed to enter final judgment in favor of the Commissioner and
close the case.
ORDERED in Tampa, Florida, on September 20, 2019.

□□ Ae
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103722. Public record. Not legal advice.