Davis v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JUDY DAVIS,

Plaintiff,

v. CASE No. 8:20-cv-1058-TGW

KILOLO KUAKAZI,

Acting Commissioner of !

Social Security,

Defendant.

ORDER

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

her claims for Social Security disability benefits and supplemental security

income payments.? Because the decision of the Commissioner of Social

Security is supported by substantial evidence and does not contain any

reversible error, the decision will be affirmed.

'Kilolo Kijakazi became the Commissioner of Social Security on July 9, 2021, and

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

*The parties have consented in this case to the exercise of jurisdiction by a United

States Magistrate Judge (Doc. 17).

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

administrative hearing and who has three years of a college sdusati has

worked as a service investigator, customer service representative, and a

health unit clerk (Tr. 19, 87, 93). She filed claims for Social Security

disability benefits and supplemental security income payments, alleging that

she became disabled due to left lower lumbar sacral muscle tear, right leg

nerve damage (sciatica), vision, bladder, anxiety, depression, bulding disc

problems, back spasms, lower back pain, disc desiccation with loss of disc

height, herniated disc, high blood pressure, and right peroneal neuropathy

radiology (Tr. 459). The claims were denied initially and upon

reconsideration.

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

an administrative law judge. The law Judge found that the plaintiff had severe

impairments of disorders of the spine, invasive lobular carcinoma, left breast,

neuropathy, right foot, carpal tunnel syndrome, nuclear sclerosis, OU,

floaters, eyelid lesion, lattice degeneration, macular hole, retinal hole and

peripheral retinal degeneration, lymphedema, left arm, neuropathy, bilateral

hands and right lower extremity (big toe) (Tr. 13-14). The law see

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determined that, with those impairments, the plaintiff had the following

residual functional capacity (Tr. 16):

[She could] perform light work as defined in 20

CFR 404.1567(b) and 416.967(b) except:

occasional pushing and pulling with right lower

extremity and left upper extremity; occasional

postural activities, but can never climb ladders,

ropes and scaffolds; occasional overhead reaching

with the left upper extremity, but frequent reaching

and all other directions; frequent bilateral handling

and fingering; no more than occasional exposure

to extreme temperatures, vibration, humidity and :

workplace hazards, such as unprotected heights | .

and moving mechanical parts; if use of a computer

in the workplace is required, she must be able to !

enlarge the font; and she cannot have a job that

requires identification or recognition of an

individual or customer.

The law judge concluded that, based on the testimony of a

vocational expert, the plaintiff was able to perform her past relevant work as

a service investigator, customer service representative, and health unit clerk

(Tr. 19). Additionally, in light of the testimony of the vocational expert, the

law judge determined that the plaintiff could perform other jobs that exist in

significant numbers in the national economy, such as clerical sorter and

appointment clerk (Tr. 20-21). Consequently, the law judge found that the

plaintiff was not disabled (Tr. 21). The Appeals Council let the decision of

the law judge stand as the final decision of the Commissioner of Social

Security.

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I.

In order to be entitled to Social Security disability benefits and

supplemental security income, a claimant must be unable “to engage in any

substantial gainful activity by reason of any medically determinable Jaysicat

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. 423 (d)(1)(A),

1382c(a)(3)(A). A “physical or mental impairment,” under the terms of the

Social Security Act, is one “that results from anatomical, ohysiologtea or

psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” 42 bse.

423(d)(3), 1382c(a)(3)(D). The Act provides further that a claimant is not

disabled if she is capable of performing her previous work 42 usc.

423(d)(2)(A), 1382c(a)(3)(B). In this case, also, the plaintiff must show that

she became disabled before her insured status expired on September 30,

2017, in order to receive disability benefits. 42 U.S.C. 423(c)(1); Demandre

v. Califano, 591 F.2d 1088, 1090 (Sth Cir. 1979), cert. denied, 444 us 952,

100 S.Ct. 428, 62 L.Ed.2d 323. There is not a similar requireinent with

respect to the plaintiffs claim for supplemental security income payments,

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42 USC.

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405(g). 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 Consolidated Edison Co. v. Nite, 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.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en bane), 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 aredbiin of the

Witnesses. Grant v. Richardson, 445 F.2d 656 (Sth Cir. 1971). Similarly, it

is the responsibility of the Commissioner to draw inferences froin 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 (Sth 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 \nole

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 (11th Cir. 1988).

Il.

The plaintiffs sole argument is that the law judge erred by

failing to ask a complete hypothetical question to the vocational expel (Doc.

25, p. 6). In this case, the law Judge asked the vocational: edpert a

hypothetical question that included the limitation that “if {the plaintift is]

working at a computer . . . she needs to be able to enlarge the font |. . She

needs to... have a computer that that can happen” (Tr. 121). The plaintiff

contends that the law judge erred by not including an additional visual

limitation in this hypothetical, specifically, “the inability to see small print

on a piece of paper or tangible item” (Doc. 25, p. 8). The plaintiff braves

that, had this limitation been included, “the vocational expert may very well

have excluded all of the claimant’s past work, as well as the other jobs he

identified” (id., pp. 8-9). This contention is unpersuasive.

First, there is not an issue with the hypothetical question. The

issue—if any at all—is with the residual functional capacity. Importantly

though, the plaintiff does not raise a challenge to the law judge’s repicual

functional capacity finding. The Scheduling Order provides that the pipintitt

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was required to “identify with particularity the discrete grounds upon which

the administrative decision is being challenged” (Doc. 18, p. 2). Thus,

because the plaintiff did not specifically articulate a challenge to the residual

functional capacity finding, any such challenge is deemed forfeited.

Accordingly, the only issue properly (but erroneously) raised concerns the

adequacy of the hypothetical question.

As indicated, the plaintiff contends that the law judge erréd by

not including an additional visual limitation in her hypothetical question to

the vocational expert of “the inability to see small print on a piece of paper

or tangible item” (Doc. 25, p. 8). This challenge to the hypothetical question

is meritless because the law judge did not include this limitation in the

residual functional capacity (Tr. 160). See Crawford v. Commissioner of

Social Security, 363 F.3d 1155, 1161 (11th Cir. 2002) (stating that the law

judge is not required to include restrictions in the hypothetical question that

she properly finds are unsupported). Because there are no limitations

regarding the plaintiffs ability to read print in the residual functional

3Any other contention is forfeited, in accordance with the Scheduling Order and

Memorandum Requirements (see Doc. 18, p. 2). See also Sanchez v. Commissioner of

Social Security, 507 Fed. Appx. 855, 859, n.1 (11th Cir. 2013) citing Access Now, Inc.

v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“A legal claim or argument

that has not been briefed before the court is deemed abandoned and its merits will not be

addressed.”).

‘

capacity finding, such limitations are not required to be in the hypothetical

question to the vocational expert. Thus, the hypothetical question properly

matched the residual functional capacity found by the law judge so that there

is no error with respect to the hypothetical question (compare Tr. 16 with Tr.

121).

However, even assuming the plaintiff had challenged the

residual functional capacity, any such challenge would fail for various

reasons. First, as the Commissioner emphasizes in her memorandum, the law

judge found that the plaintiff was able to return to her past work (Doc. 26, p.

3).4 The plaintiff argues that, had the additional visual limitation been

included, “the vocational expert may very well have excluded all of the

claimant’s past work, as well as the other jobs he identified” (Doc. 25, p. 8-

9). However, the plaintiff had the burden to show that she was unable to

return to her past work. See Jackson v. Bowen, 801 F.2d 1291, 1293-94

(11th Cir. 1986) (providing that a claimant bears the burden of proving that

he is unable to perform his past relevant work). The plaintiff failed " carry

her burden because she provided no citations to the record to support a

conclusion that she was unable to return to her past work. She merely

□

‘Because there was a finding that the plaintiff could return to her past work at step

four of the sequential analysis, it is unnecessary to consider whether she could perform

the additional jobs identified by the vocational expert and law judge.

speculated that the inclusion of the additional limitation “may very well”

have led to such a conclusion, which clearly falls short of meeting her burden

(Doc. 25, p. 9; Manzo v. Commissioner of Social Security, 408 Fed. Appx.

265, 269 (11th Cir. 2011) (providing that the plaintiff's argument was “pure

speculation,” and thus was rejected, as the plaintiff “pointed to no evidence

in the record” to support his argument); Klaes v. Commissioner of Social

Security, 719 Fed. Appx. 893, 896-897 (11th Cir. 2011) (concluding that

evidence presented by the plaintiff was “mere speculation” as such evidence

was not supported by the record)).

In all events, the plaintiff failed to provide any evidence that

would compel a reversal based on this contention. As indicated, in Adefemi

v. Ashcroft, the court held that, under the substantial evidence test, in order

to overturn a finding of fact by an administrative agency, a plaintiff must

point to evidence which compels a different conclusion. 386 F.3d at 1028.

The plaintiff has not identified any such evidence and, in fact, ovidenee in

the record refutes the plaintiffs contention.

For instance, during the examination of the plaintiff by her

representative, the plaintiff was asked questions regarding her ability to read

on a computer screen (Tr. 104-106). The plaintiff stated that she) must

enlarge the font on the computer screen and stated her need to “read up close”

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(Tr. 105). The plaintiff further noted that during work meetings with

presentations on a board, she was accommodated by being provided printed

versions of the presentations since she had difficulty seeing the board (id.).

However, the plaintiff stated that she was given regular print and not large

print of these presentations (Tr. 105-106):

Q: Can you read up close with your glasses?

A: Yeah, I have to read up close.

Q: Do you have the same challenges reading up

close as you do -- is that why you need to enlarge

the computer, or --

A: You know what I do, I generally just do it with

my naked eye and try to read... . At work when

they have presentations on the board .. . I need to

see the board...so...I try to situp close....

And the job tries to get [] stuff printed for me.

Q: Large print?

A: Like the PowerPoint of it.

Q: Large print or regular print?

A: The regular print. They try to get it printed for

me the PowerPoint because I can’t see the screen.

Aside from this testimony, the plaintiff's representative did not

develop the plaintiff's ability to read regular print. Further, the

representative did not adduce any testimony regarding the extent to hich

her job required her to read regular print. Thus, the plaintiff did not make

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any showing that her job as actually performed required her to read regular

print and that she was unable to do so.

There are two instances in the record where the iota

reported to her ophthalmologist that she “cannot see really small print” (Tr.

1837, 1843). Those statements do not support the plaintiff's claim te she

could not perform her work due to a vision problem. Significantly, the

plaintiff has not pointed to any other evidence in the record that supports her

contention.

Due to a lack of record evidence, the plaintiff simply arg | es that

“[t]he decision implicitly found that the [plaintiff] had difficulty vad, and

seeing normal sized computer fonts and... [l]ogically, [then,] she also could

not read or see the same sized font or print on a piece of paper or other items”

(Doc. 25, p. 8) (emphasis added). Contrary to the plaintiffs contention, the

law judge explicitly found that the plaintiff could read. Thus, the law judge

Stated, “I concede that collectively, these impairments of the left eye cause

some restrictions in the claimant’s visual abilities. However, she is still able

to see well enough to read, provided there is large print ..... Thus, the

claimant appears to be well able to perform work within the above referenced

RFC, as it accommodates her visual impairments” (Tr. 18). This conclusion

by the law judge is supported by the evidence in the record. It is ‘mp the

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purview of the law judge to weigh the evidence and to determine whether or

not the plaintiff is disabled.

For these reasons, the plaintiff has failed to carry her burden to

show that she cannot perform her past work. Therefore, the decision of the

Commissioner of Social Security will be affirmed.

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 TE tag of

September, 2021.

____ THOMASG. WILSON.

UNITED STATES MAGISTRATE JUDGE

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