Tim v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ELLEN TIM,

Plaintiff,

v. CASE No. 8:18-cv-1392-T-TGW

ANDREW SAUL,

Commissioner of Social Security,'

Defendant.

ORDER

The plaintiff in this case seeks judicial review of the denial of

her claim for supplemental security income payments. Because the decision

of the Commissioner of Social Security is supported by substantial evidence

and the plaintiff has not identified any reversible error, the decision will be

affirmed.

I.

The plaintiff, who was fifty-two years old at the time of the most

recent administrative hearing, and who has a ninth grade education, has no

‘Andrew M. Saul became the Commissioner of Social Security on June 17, 2019,

and should be substituted as the defendant. See Fed. R. Civ. P:25(d).

past relevant work (Tr. 20, 52). She filed a claim for supplemental security

income, alleging that she became disabled due to back problems,

hypertension, acid reflux and arthritis in her hands (Tr. 107). The claim was

denied initially and upon reconsideration.

The plaintiff, at her request, then received a de novo hearing

before an administrative law judge. The law judge found that the plaintiffhad

severe impairments of hypertension, hyperlipidemia, cervical degenerative

disc disease and obesity, but was not disabled (Tr. 135, 142). Upon the

plaintiff's request, the Appeals Council reviewed that decision, and remanded

the matter to the law judge for further consideration of the plaintiff's

maximum residual functional capacity and to provide a rationale with specific

references to evidence in support of the assessed limitations (Tr. 151-52).

On remand, the plaintiff received another hearing before the

same law judge. The law judge issued a new decision, finding that the

plaintiff has severe impairments of “hypertension, hyperlipidemia, cervical

spine degenerative disk disease, lumbar spine degenerative disk disease with

moderate osteoarthritis and osteophyte formation, and obesity” (Tr. 15). He

concluded that the plaintiff has the following residual functional capacity (Tr.

16):

oo

[The ability] to lift and carry up to 20 pounds

occasionally; sit for 5 hours at a time, for a total of

6 hours in an 8-hour workday; stand and walk 1

hour each at a time, for a total of 2 hours each in an

8-hour workday; frequently use hands for reaching,

handling, fingering, feeling, pushing or pulling;

frequently use right f[oo]t and occasionally use left .

foot for operation of foot controls; and

occasionally perform all the postural activities,

except for never climbing ladders or scaffolds. She

has occasional environmental limitations, including

extremes of temperature, unprotected heights,

operating a motor vehicle and loud traffic.

The law judge found that the plaintiff had no past relevant work

(Tr. 20). However, based upon the testimony of a vocational expert, the law

judge determined that, with the plaintiff's limitations, there were jobs that

exist in significant numbers in the national economy that a person with the

plaintiff's residual functional capacity could perform, such as a filter

assembler (Tr. 20—21).’ The law judge therefore decided that the plaintiff was

not disabled (Tr. 21). The Appeals Council let this decision of the law judge

stand as the final decision of the Commissioner (Tr. 1).

?The vocational expert testified that a filter assembler “tak[es] pre-formed

pieces...[for] air conditioner filters, car filters, [or] a number of different types of filters”

and “put[s] together the pieces” (Tr. 73).

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II.

In order to be entitled to supplemental security income, a

claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

... has lasted or can be expected to last for a continuous period of not less than

twelve months.” 42 U.S.C. 1382c(a)(3)(A). A “physical or mental

impairment,” under the terms of the Act, is one “that results from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42

U.S.C. 1382c(a)(3)(D).

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42 U.S.C.

405(g). Substantial evidence is “such relevant evidence as areasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Under the substantial evidence test, “findings of fact

made by administrative agencies ... may be reversed ... only when the record

compels a reversal; the mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

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Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11" Cir. 2004) (en banc), cert.

denied, 544 U.S. 1035 (2005).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 (5" Cir. 1971), Similarly, it is

the responsibility of the Commissioner to draw inferences from the evidence,

and those inferences are not to be overturned if they are supported by

substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (5" Cir.

1963).

Therefore, in determining whether the Commissioner’s decision

is supported by substantial evidence, the court is not to reweigh the evidence,

but is limited to determining whether the record as a whole contains sufficient

evidence to permit a reasonable mind to conclude that the claimant is not

disabled. However, the court, in its review, must satisfy itself that the proper

legal standards were applied and legal requirements were met. Lamb v.

Bowen, 847 F.2d 698, 701 (11" Cir. 1988).

III.

The plaintiff states two broad and vague issues at the beginning

of her memorandum (Doc. 18, p. 2). However, the Scheduling Order and

Memorandum Requirements issued in this case requires the plaintiff to

identify “with particularity the discrete grounds upon which the

administrative decision is being challenged” (Doc. 16, p. 2). Since the

general issues stated at the outset do not meet that requirement, they will be

disregarded.

The issue enumerated at the beginning ofthe plaintiff's argument

is not much better (Doc. 18, p. 5). Nevertheless, since that issue was at least

developed, it will be evaluated.’

The plaintiff argues that, given her “age of 50 years old on the

amended alleged onset date, her limited education, the lack of past relevant

work, and the finding that she could lift and carry up to 20 pounds

occasionally... §201.09 [of the Guidelines for sedentary work] is applicable

and directs a finding of ‘disabled’” (id.). The Guidelines, also known as the

In light of the Scheduling Order and Memorandum Requirements, any other

challenge is deemed forfeited (Doc. 16, p. 2). See also Sanchez v. Commissioner of Social

Security, 507 Fed. Appx. 859 n.1 (11 Cir. 2013) (the plaintiff waived any challenge to the

law judge’s determination that was not adequately raised).

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_ “grids,” are regulations designed to incorporate vocational factors into the

determination of disability claims. See 20 C.F.R. Part 404, Subpart P,

Appendix 2; 20 C.F.R. 416.969. They apply when a claimant’s medical

condition is severe enough to prevent her from returning to her former

employment, but may not be severe enough to prevent her from engaging in

other substantial gainful activity. If an individual’s situation coincides with

the criteria listed in a rule, that rule directs a conclusion as to whether the

individual is disabled. 20 C.F.R. 416.969.

The plaintiffs argument fails. It is based on the erroneous

assumption that the plaintiff was limited to sedentary work. The law judge

determined that the plaintiff could perform a range of light work (Tr. 21).

Therefore, §201.09 is inapplicable.

The law judge did not rely upon the Guidelines in deciding the

plaintiff's claim. Rather, he obtained the testimony of a vocational expert to

determine whether the plaintiff was disabled. That was the proper approach

in this case. See Phillips v. Barnhart, 357 F.3d 1232, 1242 (11" Cir. 2004)

(“Exclusive reliance on the grids is not appropriate either 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.” ); Allen v. Sullivan, 880 F.2d 1200, 1202 (11th Cir. 1989).

As the law judge explained (Tr. 21):

If the claimant had the residual functional capacity

to perform the full range of light work, a finding of

“not disabled” would be directed by Medical-

Vocational Rule 202.10. However, the claimant’s

ability to perform all or substantially all of the

requirements of this level of work has been

impeded by additional limitations.

To determine the extent to which these limitations

erode the unskilled light occupational base, the

Administrative Law Judge asked the vocational

expert whether jobs exist in the national economy

for an individual with the claimant’s age,

education, work experience, and_ residual

functional capacity.

In this regard, the law judge asked the vocational expert this

hypothetical question (Tr. 68):

Q: [T]his individual [is] approaching advanced

age, 52, ninth grade education with no...past

relevant work....Lifting and carrying 20 pounds

occasionally....[T]he claimant can sit five hours

without interruption, stand only one hour and walk

only one hour [without interruption]. In a total

eight-hour day sit six, stand two, walk two, doesn’t

need a cane. Can frequently use her hands, one

third to two thirds of the time for all reaching,

fingering, feeling, pushing, pulling, same for her

feet, right foot frequently, one third to two thirds

for foot controls, left foot, occasionally up to one

third of the day. Can occasionally do all posturals

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except climbing ladders or scaffolds and...has

occasional environmental limitations, including

extremes to temperature, unprotected heights,

operating a motor vehicle, loud traffic. With those

limitations, can you describe a job consistent with

the DOT?

A: Assembly such as filter assembler, DOT

number 739.687-026[. It] is light with an SVP: 2,

approximately 50,000 [jobs] nationally.

The operative hypothetical question matches the law judge’s determination

of the plaintiff's residual functional capacity (compare Tr. 16 with Tr. 68).

Therefore, the vocational expert’s testimony that the plaintiff could be a filter

assembler constitutes substantial evidence that the plaintiff was not disabled.

Wilson v. Barnhart, 284 F.3d 1219, 1227 (11" Cir. 2002) (A vocational

expert's testimony constitutes substantial evidence when the law judge poses

a hypothetical question which comprises all of the claimant's impairments.

Notably, the filter assembler job allows the plaintiff to sit or stand at her

option, so that it is less exertional than her residual functional capacity (Tr.

69).

The plaintiff argues that the law judge erred in finding that she

could perform a light exertional job (see Doc. 18, p. 7). She asserts (id.):

[T]his finding that the Plaintiff could perform light

work is contradicted in all definitional parameters

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of work at such an exertional level. Per the

residual functional capacity found in the decision,

her ability to stand/walk is severely limited, her

ability to lift/earry is up to twenty pounds

occasionally, with no finding of an ability to

frequently lift/carry at any weight level, and even

the use of her upper and lower extremities is

compromised.

This cryptic argument is unavailing. To the extent that the

plaintiff is arguing that the limitation on walking or standing places the job

in the sedentary category, that contention is mistaken. It is the requirement

to lift and carry twenty pounds that makes the job light work. Thus, the law

judge asked the vocational expert (Tr. 68-69):

Q: _ [J]ustto get clarification...with the restriction

of...five hours...of sitting, one hour of standing and

one-hour walking, and in an eight-hour day sitting

six, standing two and walking two per exhibit 25-F,

10, what makes this a light job?

A: Well, it can be, some of the pieces are over

ten pounds, but the DOT doesn’t really just

prescribe a specific time for standing and walking

or sitting, [it] would be the exertional levels that

might be used, picked up, moved.

Furthermore, the law judge inquired whether the filter assembler

job could accommodate the plaintiff's allegation that she could only sit for

15—20 minutes, and stand for 15 minutes, at one time (Tr. 69). The vocational

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expert responded, “It is a job that is performed in many places with a change

of position, so yeah, it can be performed either sitting or standing” (Tr. 69).

Therefore, the law judge concluded that, “even using the claimant’s

seemingly exaggerated and unsupported testimony regarding...[her] sit-stand

limitations, the aforementioned job would remain” (Tr. 21).

The plaintiff also argues that she does not have the residual

functional capacity to be a filter assembler because it involves frequently

lifting and carrying 10 pounds or less, and the law judge did not state that the

plaintiffis “ab[le] to frequently lift/carry at any weight level” (Doc. 18, p. 7).

Furthermore, she contends “[i]t is clear that the decision’s intent is a finding

[of]...occasional lifting up to twenty pounds, and at all weight levels below

that” (id.). The Commissioner correctly responds that the plaintiff's

contention “is belied by a review of the decision” (Doc. 20, p. 11).

Thus, the law judge expressly rejected the consultative

examiners’ opinion that the plaintiff could only lift and carry up to 10 pounds

occasionally, stating that those opinions “simply w[ere] not supported within

the evidence” (Tr. 18, 19). The law judge explained his reasoning for that

finding (Tr. 19):

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[I]t was...[un]clear how [consultative examiner] Dr.

[Bhupendra] Gupta reach[ed] this conclusion as he

assessed 5/5 strength throughout including in the

hands, supportive that the claimant was even less

limited than assessed by [consultative examiner]

Dr. [Eniola] Owi. As noted the claimant

consistently exhibited normal strength in the upper

extremity with [Dr. Owi finding] only a very slight

[4+/5] seemingly transient reduction in right grip .

strength. Reasonably, this sole part of Dr. Owi’s

[and Dr. Gupta’s] assessment was flawed given the

overwhelmingly unremarkable clinical examination

findings. Therefore, the undersigned does not find

the 10 pound occasional lifting and carrying

limitation has any merit.

(emphasis added).

Moreover, the law judge repeated his rejection of this limitation

at the end of the decision. He stated (Tr. 22):

The [plaintiffs] representative questioned the

vocational expert regarding the enclosed RFC,

emphasizing that the lifting and carrying was 20

pounds occasionally and 10 pounds occasionally.

The vocational expert responded that with

everything else combined that she believed [a 10-

pound occasional lift/carry limitation] would be

more sedentary. As previously explained, the

evidence did not support this additional limitation.

Therefore, the undersigned finds the

representative’s argument had no merit.

(emphasis added). Consequently, it is indisputable that the law judge

rejected a limitation to occasional lifting and carrying of 10 pounds or less.

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Furthermore, it is implicit in the law judge’s decision that he

found the plaintiff could frequently lift or carry 10 pounds or less. Thus, the

law judge determined that the plaintiff could perform arange of “light work,”

"and discussed the erosion of the “light” occupational base (Tr. 21). The law

judge also specified that he “formulated a...light RFC [residual functional

capacity)” (Tr. 19). The definition of light work includes “frequent lifting or

carrying of objects weighing up to 10 pounds.” 20 C.F.R. 416.967(b). The

law judge’s finding that the plaintiff can “frequently use her hands” (Tr. 16)

is also consistent with that determination.

Therefore, the law judge’s express rejection of the 10-pound

occasional limitation, coupled with his finding that the plaintiffcould perform

a range of light work (Tr. 21), shows that the law judge implicitly found that

the plaintiff could frequently lift and carry up to 10 pounds. See Tieniber v.

Heckler, 720 F.2d 1251, 1255 (11" Cir. 1983) (credibility findings may be by

implication if they are obvious to the reviewing court); Carson v.

Commissioner of Social Security, 373 Fed. Appx. 986, 989 (11" Cir. 2010)

(the law judge’s finding was an implicit rejection of the doctors’ opinions);

Wind v. Barnhart, 133 Fed. Appx. 684, 692 (11" Cir. 2005) (although the law

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judge did not explicitly state he was crediting a physician’s opinion, the law

Judge’s reliance on that opinion was implicit in his findings).

Importantly, moreover, the vocational expert understood that the

operative hypothetical question included frequent lifting/carrying of 10

pounds or less. Thus, in response to the law judge’s hypothetical question,

the vocational expert responded that the plaintiff could do a light exertional:

job (Tr. 68). The vocational expert’s understanding is also apparent from her

response to this question from the plaintiff's representative (Tr. 70):

Q: I believe [that the law judge’s hypothetical

question] was 20 pounds occasionally, with no

limitation on frequent, it wasn’t mentioned. What

if it was 20 pounds occasionally, but up to ten

pounds occasionally as well? Would that change

your [opinion if she could lift/carry] up to ten

pounds...only up to one third [of the] day?

A: Witheverything else combined, at that point,

I believe it would be more sedentary.

Therefore, the vocational expert clearly understood that the law judge’s

pertinent hypothetical question included a light exertional limitation on lifting

and carrying.

In sum, although the law judge did not specify in the residual

functional capacity that the plaintiff could frequently lift/carry 10 pounds or

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less, that finding was implicit in the decision, and the vocational expert’s

testimony was based on that understanding. Therefore, an error in not

expressly stating that the plaintiff had the ability to lift and carry up to

pounds frequently was harmless, and judicial review in this case would not

be meaningfully aided by remanding this case for the law judge to specifically

state this finding in the decision. See Denomme v. Commissioner of Social

Security, 518 Fed. Appx. 875, 877 (11" Cir. 2013) (citing Diorio Heckler,

721 F.2d 726, 728 (11" Cir. 1983) (An error is harmless when the correction

of an error would not change the law judge’s ultimate finding, and the law

judge’s decision is appropriately affirmed.); see also Sanchez v.

Commissioner of Social Security, supra, 507 Fed. Appx. at 856; Brown v.

Commissioner of Social Security, 680 Fed. Appx. 822, 824-25 (11" Cir.

2017).

‘Additionally, the plaintiff contends that the law judge did not comply with the

Appeals Council’s Remand Order. It stated, among other things, that the law judge did not

address in that decision Dr. Owi’s opinion that the plaintiff was limited to occasionally

lifting/carrying up to 20 pounds and that no reason was provided for rejecting this opinion

(Doc. 18, p. 7). The law judge complied with this directive, as he expressly rejected in this

decision that aspect of Dr. Owi’s opinion and stated a reasonable explanation for doing so

(see Tr. 18-19, 22). The Appeals Council affirmed that-decision, stating that “We have

found no reason under our rules to review the Administrative Law Judge’s decision” (Tr.

1). Therefore, this argument is unavailing.

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Moreover, the record contains a medical opinion that the plaintiff

can frequently lift/carry objects weighing 10 pounds or less (Tr. 124). State

reviewing physician Dr. Charles Moore opined that the plaintiff could

perform light work, specifying that the plaintiff could frequently lift/carry 10

pounds or less (id.). The plaintiff seeks to disregard this opinion because the

law judge gave it limited weight (Doc. 18, p. 8). However, the law judge did

not entirely reject Dr. Moore’s opinion. The law judge stated that Dr. Moore

(Tr. 19):

assess[ed] that the claimant could perform a much

fuller range of light [work] that had fewer

limitations. Given the evidence of record, the

undersigned formulated a more restrictive light

RFC; thus, the undersigned accords limited weight

to this opinion.

Therefore, the law judge discounted Dr. Moore’s assessment only to the

extent that it opined less restrictive limitations than in his determination of the

plaintiff's residual functional capacity (see id.). Thus, Dr. Moore’s opinion

supported the law judge’s implicit finding that the plaintiff could frequently

lift or carry up to ten pounds.

Furthermore, the plaintiffs suggestion that the residual

functional capacity must be based upon a medical opinion has been rejected

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by the Eleventh Circuit Court of Appeals. Green v. Social Security

Administration, 223 Fed. Appx. 915, 923 (11" Cir. 2007); Castle v. Colvin,

557 Fed. Appx. 849, 853-54 (11" Cir. 2014). Thus, the Eleventh Circuit

rejected the argument that a claimant’s residual Fanettonel capacity “should

have been underpinned by a medical source opinion.” Castle v. Colvin, supra,

557 Fed. Appx. at 854. It explained that the law judge was not “play[ing]

doctor” in assessing the plaintiff's residual functional capacity, “but instead

properly carried out his regulatory role as an adjudicator.” Id. at 853.

It is, therefore, upon consideration,

ORDERED:

That the Commissioner’s decision is hereby AFFIRMED. The

Clerk shall enter judgment in accordance with this Order and CLOSE this

case,

DONE and ORDERED at Tampa, Florida, this 18 Say of

September, 2019.

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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