Dambra v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTOPHER L. DAMBRA,

Plaintiff,

v. Case No. 8:21-cv-1524-JRK

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

/

OPINION AND ORDER2

I. Status

Christopher L. Dambra (“Plaintiff”) is appealing the Commissioner of the

Social Security Administration’s (“SSA(’s)”) final decision denying his claims for

disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

Plaintiff’s alleged inability to work is the result of an automobile accident in

which he sustained a left knee fracture, as well as depression, peripheral

neuropathy, a lower back injury, migraines, and equilibrium problems.

1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to

Rule 25(d), Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew

Saul as Defendant in this suit. No further action need be taken to continue this suit by reason

of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 15), filed September 15, 2021; Reference Order (Doc. No. 18), entered September 20,

2021.

Transcript of Administrative Proceedings (Doc. No. 16; “Tr.” or “administrative

transcript”), filed September 15, 2021, at 55-56, 67-68, 88, 101, 286.

On March 9, 2020, Plaintiff protectively filed applications for DIB and

SSI. Tr. at 245-48 (DIB), 249-55 (SSI).3 In the DIB application, Plaintiff alleged

a disability onset date of September 10, 2019. Tr. at 245. In the SSI application,

Plaintiff alleged a disability onset date of March 9, 2020. Tr. at 249. Later in

the administrative process, it was determined that Plaintiff’s alleged onset

disability date for both applications would be September 10, 2019, the

approximate date of the automobile accident that caused the majority of

Plaintiff’s physical issues. See Tr. at 301-02, 330, 338. The applications were

denied initially, Tr. at 55-66, 79, 81, 83, 127-30, 132-34 (DIB); Tr. at 67-78, 80,

84, 86, 135-37, 139-41 (SSI), and upon reconsideration, Tr. at 87-99, 113, 115,

117, 144-49, 151-56 (DIB); Tr. at 100-12, 114, 118, 120, 157-62, 164-69 (SSI).4

On February 2, 2021, an Administrative Law Judge (“ALJ”) held a

telephonic hearing, 5 during which he heard from Plaintiff, who was

represented by counsel, and a vocational expert (“VE”). See Tr. at 33-54 (hearing

3 The applications were actually completed on March 24, 2020, see Tr. at 245

(DIB), 249 (SSI); but the protective filing date for both applications is listed in the

administrative transcript as March 9, 2020, see Tr. at 55, 67, 87, 100.

4 Some of these cited documents are duplicates.

5 The hearing was held via telephone with Plaintiff’s consent because of

extraordinary circumstances presented by the COVID-19 pandemic. Tr. at 36.

transcript); Tr. at 121-26 (appointment of representative documents). At the

time of the hearing, Plaintiff was forty-four (44) years old. Tr. at 39. On

February 23, 2021, the ALJ issued a Decision finding Plaintiff not disabled

through the date of the Decision. See Tr. at 20-28.

Thereafter, Plaintiff requested review of the Decision by the Appeals

Council. Tr. at 4-5 (Appeals Council exhibit list and order), 241-44 (request for

review). On April 30, 2021, the Appeals Council denied Plaintiff’s request for

review, Tr. at 1-3, making the ALJ’s Decision the final decision of the

Commissioner. On June 24, 2021, Plaintiff commenced this action under 42

U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking

judicial review of the Commissioner’s final decision.

On appeal, Plaintiff raises as issues 1) “whether the [ALJ] posed a

complete hypothetical question to the [VE]”; 2) “whether the Commissioner

adequately developed the record regarding Plaintiff’s mental impairments”;

and 3) “whether the Commissioner reasonably relied upon the testimony of the

[VE].” Joint Memorandum (Doc. No. 21; “Joint Memo”), filed February 28, 2022

at 5, 10, 14 (some capitalization omitted). After a thorough review of the entire

record and consideration of the parties’ arguments, the undersigned finds that

the Commissioner’s final decision is due to be affirmed.

II. The ALJ’s Decision

When determining whether an individual is disabled,6 an ALJ must

follow the five-step sequential inquiry set forth in the Regulations, determining

as appropriate whether the claimant (1) is currently employed or engaging in

substantial gainful activity; (2) has a severe impairment; (3) has an impairment

or combination of impairments that meets or medically equals one listed in the

Regulations; (4) can perform past relevant work; and (5) retains the ability to

perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see

also Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1101-02 (11th Cir. 2021)

(citations omitted); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).

The claimant bears the burden of persuasion through step four, and at step five,

the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5

(1987).

Here, the ALJ followed the five-step inquiry. See Tr. at 22-27. At step one,

the ALJ determined that Plaintiff “has not engaged in substantial gainful

activity since September 10, 2019, the alleged onset date.” Tr. at 22 (emphasis

and citation omitted). At step two, the ALJ found that Plaintiff “has the

following severe impairments: left tibia fracture, scoliosis, headache, and

6 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

depression.” Tr. at 22 (emphasis and citation omitted). At step three, the ALJ

found that Plaintiff “does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed

impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 23

(emphasis and citation omitted).

The ALJ determined that Plaintiff has the following residual functional

capacity (“RFC”):

[Plaintiff can] perform light work as defined in 20 [C.F.R.

§§] 404.1567(b) and 416.967(b) except he can occasionally climb

ladders, ropes, scaffolds, ramps, and stairs, balance, stoop, kneel,

crouch, and crawl. [Plaintiff] needs to avoid concentrated exposure

to extreme cold, extreme heat, excessive vibration, pulmonary

irritants such as fumes, odors, dust, and gases, and hazards.

[Plaintiff] can understand, remember, carryout, and perform

simple, routine tasks and instructions, reasoning level 1 or 2.

Tr. at 24 (emphasis omitted).

At step four, the ALJ relied on the VE’s hearing testimony and found that

Plaintiff “is unable to perform any past relevant work” as a “Construction

Worker II.” Tr. at 26 (some emphasis and citation omitted). The ALJ then

proceeded to the fifth and final step of the sequential inquiry. Tr. at 26-27. After

considering Plaintiff’s age (“42 years old . . . on the alleged disability onset

date”), education (“at least a high school education”), work experience, and RFC,

the ALJ relied on the VE’s testimony and found that “there are jobs that exist

in significant numbers in the national economy that [Plaintiff] can perform,”

Tr. at 26, such as “Ticket Taker” and “Flagger,” Tr. at 27 (some emphasis

omitted). The ALJ concluded Plaintiff “has not been under a disability . . . from

September 10, 2019, through the date of th[e D]ecision.” Tr. at 27 (emphasis

and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

A. Hypothetical to VE

Plaintiff argues the ALJ erred in posing the hypothetical to the VE. Joint

Memo at 5-7. According to Plaintiff, “It is unclear how the severe non-exertional

impairments of depression, with moderate limitations in concentrating,

persisting, or maintaining pace, translate into an ability to understand,

remember, carry out, and perform simple, routine tasks and instructions,

reasoning level 1 or 2.” Id. at 6. Responding, Defendant contends that the record

does not support any limitations beyond what the ALJ included in the

hypothetical to the VE, and Plaintiff does not offer any possible limitations. Id.

at 9-10.

An ALJ poses a hypothetical question to a VE as part of the step-five

determination of whether the claimant can obtain work in the national

economy. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). When

the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC

assessment in the ALJ’s written decision to the adequacy of the RFC description

contained in the hypothetical posed to the VE. Brunson v. Astrue, 850 F. Supp.

2d 1293, 1303 (M.D. Fla. 2011) (quoting Corbitt v. Astrue, No. 3:07-cv-518-HTS,

2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished)).

In determining an individual’s RFC and later posing a hypothetical to a

VE that includes the RFC, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not ‘severe.’”

SSR 96-8P, 1996 WL 374184 at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle

v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating “the ALJ must consider

a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves

v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))). “In order for a [VE]’s testimony

to constitute substantial evidence, the ALJ must pose a hypothetical question

which comprises all of the claimant’s impairments.” Wilson, 284 F.3d at 1227

(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also Loveless

v. Massanari, 136 F. Supp. 2d 1245, 1250 (M.D. Ala. 2001). While the

hypothetical question must include all of the claimant’s impairments, it need

not include impairments properly rejected by the ALJ. See McSwain v. Bowen,

814 F.2d 617, 620 n.1 (11th Cir. 1987). Moreover, “questions that ‘implicitly

account[ ] for the claimant’s limitations’ are sufficient to meet this

requirement.” Henry v. Comm’r, Soc. Sec. Admin., 802 F.3d 1264, 1269 (11th

Cir. 2015) (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81

(11th Cir. 2011)); see also Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x

604, 612 (11th Cir. 2015).

In Winschel, the Court of Appeals for the Eleventh Circuit found error in

an ALJ’s decision because the ALJ determined the claimant had “a moderate

limitation in maintaining concentration, persistence, and pace” but “did not

indicate that medical evidence suggested [the claimant’s] ability to work was

unaffected by this limitation, nor did he otherwise implicitly account for the

limitation in the hypothetical [to the VE].” 631 F.3d at 1179. According to the

Eleventh Circuit, “the ALJ should have explicitly included the limitation in his

hypothetical question to the [VE].” Id. Nevertheless, the Eleventh Circuit

suggested that in other appropriate circumstances, an ALJ may properly find

that the medical evidence of record supports only an RFC limitation of unskilled

work despite moderate limitations in concentration, persistence, or pace. See

id. (citations omitted) (collecting cases finding that “when medical evidence

demonstrates that a claimant can engage in simple, routine tasks or unskilled

work despite limitations in concentration, persistence, and pace, courts have

concluded that limiting the hypothetical to include only unskilled work

sufficiently accounts for such limitations”).

Post-Winschel, the Eleventh Circuit (albeit in unpublished opinions) has

recognized that a moderate limitation in concentration, persistence and pace

can be sufficiently accounted for by posing a hypothetical to a VE that limits an

individual to simple, unskilled work (or something similar) when the medical

evidence demonstrates an ability to perform such work. See, e.g., Mijenes v.

Comm’r of Soc. Sec., 687 F. App’x 842, 846 (11th Cir. 2017) (finding that

“[b]ecause the medical evidence showed that [the claimant] could perform

simple, routine tasks despite her limitations in concentration, persistence, and

pace, the ALJ’s limiting of [the claimant’s RFC] to unskilled work sufficiently

accounted for her moderate difficulties in concentration, persistence, and pace”

(citation omitted)); Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 907-08

(11th Cir. 2013) (approving of a limitation to “simple, one-two step task[s with]

only occasional contact with the public, coworkers, and supervisors” as

accounting for moderate limitation in concentration, persistence and pace in

light of opinions of two non-examining psychologists’ opinions supporting the

finding); Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 951 (11th Cir. 2013)

(finding a limitation “to one to three step non-complex tasks” sufficiently

accounted for moderate limitation in concentration, persistence, and pace);

Washington v. Soc. Sec. Admin., Comm’r, 503 F. App’x 881, 883 (11th Cir. 2013)

(finding a limitation “to performing only simple, routine repetitive tasks with

up to three-step demands, and only occasional changes in the work setting,

judgment, or decision making” was sufficient to account for moderate limitation

in maintaining concentration, persistence, and pace); Scott v. Comm’r of Soc.

Sec., 495 F. App’x 27, 29 (11th Cir. 2012) (distinguishing Winschel and finding

that “the medical evidence demonstrated that [the claimant] could engage in

simple, routine tasks or unskilled work despite moderate limitations in

concentration, persistence, and pace”); Jarrett v. Comm’r of Soc. Sec., 422 F.

App’x 869, 871 (11th Cir. 2011) (finding that the limitations of simple tasks and

only being able to concentrate for brief periods of time accounted for the

claimant’s moderate difficulties in concentration, persistence, and pace); see

also, e.g., Davis v. Comm’r of Soc. Sec., 11 F. Supp. 3d 1154, 1159 (M.D. Fla.

2014) (recognizing Winschel’s approval of limiting a hypothetical to unskilled

work—despite moderate limitations in concentration, persistence, and pace—

when the medical evidence supports it); Dawson v. Comm’r of Soc. Sec., No.

6:11-cv-1128-GAP-KRS, 2012 WL 1624267 (M.D. Fla. May 9, 2012)

(unpublished) (collecting cases which recognize that the inclusion of limitations

such as work involving simple tasks and/or simple instructions properly

accounts for moderate limitations in concentration, persistence, and pace), aff’d,

528 F. App’x 975 (11th Cir. 2013).

Here, the ALJ found with regard to concentrating, persisting, or

maintaining pace, that Plaintiff “has moderate limitation.” Tr. at 23. The RFC

and the hypothetical posed to the VE limit Plaintiff to “understand[ing],

remember[ing], carry[ing] out, and perform[ing] simple, routine tasks and

instructions, reasoning level 1 or 2.” Tr. at 24 (emphasis omitted) (Decision); Tr.

at 50-51 (hypothetical). Moreover, in finding at step five that there are jobs that

exist in significant numbers in the national economy that Plaintiff can perform,

the ALJ identified jobs that are unskilled work (“Ticket Taker” and “Flagger”).

Tr. at 27; see SSR 00-4p, 2000 WL 1898704, at *3 (stating “unskilled work

corresponds to a[ Specific Vocational Preparation (“SVP”) level] of 1-2”). The

ALJ properly accounted for Plaintiff’s moderate limitations in concentration,

persistence, and pace by incorporating in the RFC (and the hypothetical to the

VE) the limitation of “understand[ing], remember[ing], carry[ing] out, and

perform[ing] simple, routine tasks and instructions, reasoning level 1 or 2,” Tr.

at 23 (emphasis omitted), and finding Plaintiff can perform unskilled work, Tr.

at 27. See, e.g., Winschel, 631 F.3d at 1179; Scott, 495 F. App’x at 29.

B. Failure to Develop Record on Mental Impairments

Plaintiff argues the SSA failed to adequately develop the record regarding

his mental impairments because the ALJ declined to order a consultative

examination. Joint Memo at 10-12. Responding, Defendant argues the ALJ did

not err in electing not to order a consultative examination, and the record does

not contain any evidentiary gaps resulting in unfairness or clear prejudice. Id.

at 12-14.

“It is well-established that the ALJ has a basic duty to develop a full and

fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20

C.F.R. § 416.912(d)). “Nevertheless, the claimant bears the burden of proving

that he [or she] is disabled, and, consequently, he [or she] is responsible for

producing evidence in support of his [or her] claim.” Id. (citing 20 C.F.R. §

416.912(a), (c)). While “[t]he [ALJ] has a duty to develop the record where

appropriate[,]” the ALJ “is not required to order a consultative examination as

long as the record contains sufficient evidence for the [ALJ] to make an

informed decision.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th

Cir. 2007) (citing Doughty, 245 F.3d at 1281). To remand a case for the ALJ’s

failure to fully develop the record, there must be a showing that the claimant’s

right to due process has been violated because of such failure. Brown v. Shalala,

44 F.3d 931, 934-35 (11th Cir. 1995) (citing Kelley v. Heckler, 761 F.2d 1538,

1540 (11th Cir. 1985)). Prejudice exists if the record contains evidentiary gaps

which may cause the ALJ to reach an unfair determination due to the lack of

evidence, id. at 935, or if “the ALJ did not consider all of the evidence in the

record in reaching his decision,” Kelley, 761 F.2d at 1540.

Upon review, the undersigned finds the ALJ fulfilled his duty to develop

a full and fair record, and furthermore, no prejudice resulted from the ALJ’s

assessment of Plaintiff’s limitations based on the record. The evidence in the

administrative transcript provided enough information upon which to base the

mental RFC determination. As the ALJ noted, at the time of the Decision,

Plaintiff did “not have any current treatment for his mental impairments.” Tr.

at 23. The records from previous treatment were generally unremarkable from

a mental perspective, as the ALJ found. Tr. at 23 (citations omitted); see Tr. at

494-97, 503-12, 517-25. State agency psychologists found Plaintiff did not even

have a severe mental impairment, see Tr. at 60, 72, 93, 106, but the ALJ gave

Plaintiff the benefit of the doubt and assigned some mental limitations in the

RFC, Tr. at 26. Even if the ALJ did err by electing not to order a consultative

mental examination, Plaintiff has not shown prejudice requiring remand. No

evidentiary gaps exist in the record. The ALJ did not commit reversible error in

this regard.

C. VE Testimony Regarding Work Plaintiff Can Perform

Plaintiff argues the ALJ erred in relying on the VE’s testimony that he

can perform the job of “Flagger.” Joint Memo at 14-18. A flagger signals with a

checkered flag at the starting line of horse races to notify the racing timer when

to start timing the race. See DOT 372.667-026. According to Plaintiff, it is

unreasonable to assert, as the VE did, that there are 4,370 flagger positions in

the national economy. See Joint Memo at 15. In making this argument, Plaintiff

relies on articles about the horse racing industry that are not included in the

administrative transcript. See id. at 16 n. 4, 5. Responding, Defendant contends

the ALJ appropriately relied on the VE’s testimony, and the step five findings

are supported by substantial evidence. Id. at 18-23. Defendant further argues

the Court should not look outside the administrative transcript in considering

this issue. Id. at 21-23.

Plaintiff does not challenge the requirements of the flagger job as being

inconsistent with the description set forth in the DOT, instead relying on

outside articles for this contention. But, this Court cannot rely on information

that is not included in the administrative transcript in deciding whether the

step five findings are adequately supported. Moreover, Plaintiff’s counsel had

the opportunity to ask the VE questions during the hearing if counsel believed

the VE’s cited number of jobs was inaccurate, but counsel did not do so. See Tr.

at 53. In any event, Plaintiff does not challenge the other job relied upon by the

VE and the ALJ at step five. This job, Ticket Taker, has 38,627 jobs available

nationally. See Tr. at 51 (VE testimony), 27 (ALJ’s Decision). The ticket taker

job alone carries enough jobs nationally upon which the ALJ’s step five findings

could be based. There is no reversible error at step five.

V. Conclusion

After a thorough review of the entire record, the undersigned finds that

the ALJ’s Decision is supported by substantial evidence. Based on the foregoing,

it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as well as § 1383(c)(3), AFFIRMING the

Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September 26, 2022.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge

kaw

Copies:

Counsel of Record

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