Little v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TUREKISHA LITTLE,

Plaintiff,

v. Case No. 8:23-cv-245-AEP

MARTIN O’MALLEY,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of

disability, disability insurance benefits (“DIB”), and Supplemental Security Income

(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was based on

substantial evidence and employed proper legal standards, the Commissioner’s

decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI. (Tr. 246).

The Social Security Administration (“SSA”) denied Plaintiff’s claims both initially

and upon reconsideration. (Tr. 85-97, 101-109). Plaintiff then requested an

1 Martin O’Malley is now the Commissioner of Social Security. Pursuant to Rule 25(d) of

the Federal Rules of Civil Procedure, Commissioner Martin O’Malley should be

substituted for Acting Commissioner Kilolo Kijakazi as the defendant in this matter. No

further action needs to be taken to continue this matter by reason of the last sentence of

administrative hearing. (Tr. 142). Per Plaintiff’s request, the ALJ held a hearing at

which Plaintiff appeared and testified. (Tr. 56-84). Following the hearing, the ALJ

issued an unfavorable decision finding Plaintiff not disabled and accordingly denied

Plaintiff’s claims for benefits. (Tr. 42-50). Subsequently, Plaintiff requested review

from the Appeals Council, which the Appeals Council denied. (Tr. 11). 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).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1971, claimed disability beginning November 1,

2012. (Tr. 246-47). Plaintiff has a ninth-grade education and no past relevant work

experience. (Tr. 54, 62). Plaintiff alleged disability due to blindness in her left eye

and poor vision in her right eye. (Tr. 277).

In rendering the administrative decision, the ALJ concluded that Plaintiff

had not engaged in substantial gainful activity since July 6, 2020, the application

date. (Tr. 44). After conducting a hearing and reviewing the evidence of record, the

ALJ determined Plaintiff had the following severe impairments: visual

impairments, including glaucoma, cataracts, and central corneal opacity that results

in light perception-only vision of the left eye. (Tr. 45). 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. 46). The ALJ then

concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform:

light work as defined in 20 CFR 416.967(b) except she cannot climb

ladders, ropes, or scaffolds, can frequently climb ramps and stairs, and

would need to avoid even moderate exposure to workplace hazards,

defined as moving mechanical parts and unprotected heights. She has,

effectively, monocular vision and therefore cannot operate and

machinery or motorized vehicles. She can do work requiring frequent

or less field of vision, near acuity, far acuity, and depth perception.

Id. In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective

complaints and determined that, although the evidence established the presence of

underlying impairments that reasonably could be expected to produce the

symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting

effects of her symptoms were not entirely consistent with the medical evidence and

other evidence. Id.

Plaintiff was found to have no past relevant work. (Tr. 48). Given Plaintiff’s

background and RFC, the VE testified that Plaintiff could perform other jobs

existing in significant numbers in the national economy, such as a housekeeper,

cafeteria attendant, and recreation aide. (Tr. 49). Accordingly, based on Plaintiff’s

age, education, work experience, RFC, and the testimony of the VE, the ALJ found

Plaintiff not disabled. (Tr. 50).

II.

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).

To regularize the adjudicative process, the SSA 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. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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)(4)(v), 416.920(a)(4)(v). 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)(1), 416.920(g)(1).

The ALJ, in part, decides Plaintiff’s claim pursuant to regulations designed

to incorporate vocational factors into the consideration of disability claims. See 20

C.F.R. §§ 404.1501, et seq. These regulations apply in cases where an individual’s

medical condition is severe enough to prevent him from returning to his former

employment but may not be severe enough to prevent him from engaging in other

substantial gainful activity. In such cases, the Regulations direct that an individual’s

residual functional capacity, age, education, and work experience be considered in

determining whether the claimant is disabled. These factors are codified in tables of

rules that are appended to the regulations and are commonly referred to as “the

grids.” 20 C.F.R. Part 404, Subpart P, App. 2. 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. §§ 404.1569, 416.969. If an individual’s situation

varies from the criteria listed in a rule, the rule is not conclusive as to an individual’s

disability but is advisory only. 20 C.F.R. §§ 404.1569a, 416.969a.

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 more

than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,

1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the

court reviews the Commissioner’s decision with deference to the factual findings,

no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496

F.3d 1253, 1260 (11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh 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. Winschel, 631 F.3d at 1178

(citations omitted); 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. Ingram, 496 F.3d at 1260 (citation omitted). 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)

(per curiam) (citations omitted).

III.

Plaintiff argues that the ALJ erred in his reliance on the vocational expert’s

response to an “incomplete” hypothetical. For the following reasons, the ALJ

applied the correct legal standards, and the ALJ’s decision is supported by

substantial evidence.

In his RFC evaluation of Plaintiff, the ALJ found that Plaintiff effectively

had monocular vision and therefore could not operate machinery or motorized

vehicles. (Tr. 46). Moreover, Plaintiff was limited to doing work which required

frequent or less field of vision, near acuity, far acuity, and depth perception. Id. In

making this determination, the ALJ considered “all symptoms and the extent to

which these symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence, based on the requirements of 20 CFR 416.929

and SSR 16-3p” and detailed the reasoning for his findings extensively. (Tr. 46-48).

First, the ALJ summarized Plaintiff’s relevant medical records prior to the

protective filing date, nothing that Plaintiff had “a left eye cataract, left eye corneal

opacity resulting in light perception only, right eye nuclear sclerosis, and possible

glaucoma of the right eye,” though Plaintiff’s right eye vision was correctable to

20/30. (Tr. 47). Moreover, with respect to medical opinions, the ALJ found the

medical opinion of state agency medical consultant Dr. Prianka Gerrish partially

persuasive and the opinion of state agency medical consultant Dr. Sharka Junejo

generally persuasive. (Tr. 48). As to Dr. Gerrish’s opinion, the ALJ agreed with Dr.

Gerrish that Plaintiff’s light-only vision in her left eye allowed Plaintiff to engage

only in occasional near acuity, far acuity, depth perception, accommodation, color

vision, and field of vision with the left eye. Id. However, to account for Plaintiff’s

right eye glaucoma with floaters, the ALJ limited Plaintiff to doing work requiring

frequent or less field of vision, near acuity, far acuity, and depth perception

bilaterally and found Plaintiff could not operate any machinery or motorized

vehicles. Id. Similarly, the ALJ accepted Dr. Junejo’s findings that Plaintiff was

unable to climb ladders, ropes, or scaffolds, frequent ramps and stairs, frequent left

far acuity and field of vision, frequent depth perception bilaterally, and could not

have even moderate exposure to hazards. Id. However, the ALJ modified these

restrictions further, limiting Plaintiff to light work instead of medium work as the

greater lifting requirement of the latter posed a risk of injury. Id.

Based on this RFC determination, the ALJ posed the following hypothetical

to the vocational expert at hearing:

I would like you to assume a hypothetical individual of the claimant's

age and education. We are assuming a limited education and further

assuming the individual for the first hypothetical, they would be

limited to light work as that term is defined by the DOT. Further the

individual would not be able to climb any ladders, ropes or scaffolds,

they could frequently climb ramps and stairs, they would need to avoid

even moderate exposure to workplace hazards which I am defining as

moving mechanical parts and unprotected heights. Additionally the

individual has effectively monocular vision, meaning they are blind or

left perception only in the left eye, so therefore cannot operate any

machinery or motorized vehicles. Positions would be limited to those

requiring frequent or less in the areas of field of vision, near acuity, far

acuity and depth perception. Given those limitations could the

hypothetical individual perform any of the claimant's -- well, there is

no past work. I apologize. Could the hypothetical individual perform

any work in the competitive work economy and if so could you please

give me a few examples with numbers of jobs for each?

(Tr. 77). In response, the vocational expert affirmed that there were jobs in the

national economy for which Plaintiff was qualified to include that of a cafeteria

attendant, recreation aide, and housekeeper. (Tr. 78). On cross-examination,

counsel for Plaintiff created his own hypothetical asking the vocational expert:

I am just going to give my own -- the hypothetical as far as the vision

goes. I would say that for a third of the work day the individual would

have vision impairment in both eyes and be unable to perform any

visual activities requiring that field of vision and near and far acuity or

depth perception and it would be unpredictable as far as when in the

day that would occur. So, would that affect the jobs or would they

remain?

(Tr. 82) (emphasis added). In response, the vocational expert testified that such a

restriction would eliminate the jobs previously identified. Id. Plaintiff now argues

that the ALJ errored in his reliance on the vocational expert’s testimony because

the hypothetical the ALJ posed to the vocational expert was incomplete.

In a convoluted and confusing argument, Plaintiff essentially maintains that

since the ALJ found Plaintiff’s monocular vision precluded her from driving, he

must have determined that any impairment in her right eye, not matter how brief,

prevented her from preforming any activities requiring near or far vision. (Doc. 16

at 5). Plaintiff then argues that the ALJ’s limitation she be considered only for jobs

with “frequent or less in the areas of field of vision, near acuity, far acuity and depth

perception” indicates that the ALJ found Plaintiff could not perform such activities

for 1/3 of the workday due to the noted impairments in her right eye. Id. at 6.

However, because these impairments occur sporadically, the ALJ errored in failing

to include this limitation in his RFC analysis2 and hypothetical to the vocational

expert:

Logically, if a person could only perform activities requiring field of

vision, depth perception, and near and far acuity, frequently or less,

and frequently is defined as 1/3 to 2/3 of a workday, the remaining

1/3 of the workday, the person could not perform these activities. If

the tasks of the job that required field of vision, depth perception, and

2 Though Plaintiff’s brief is framed as objecting solely to the hypothetical posed to

the ALJ, the argument contained within also makes a passing reference to the ALJ

having errored in his RFC analysis. See Doc. 16 at 6. The Court acknowledge that

such commentary does not constitute proper briefing of a legal argument. Marek v.

Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) (“Issues not clearly raised in the

briefs are considered abandoned.”) (citing Allstate Ins. Co. v. Swann, 27 F.3d 1539,

1542 (11th Cir.1994)). However, as this argument is not outcome determinative, the

near and far acuity coincided with the times the claimant did not have

floaters, flashes, itchy eyes, and watery eyes, in theory, perhaps the

claimant could perform the jobs. However, if the symptoms were

unpredictable as to when they occurred and the jobs did not allow the

claimant to pick and choose the times during the day, she needed to

use her vision for depth perception, field division, and/or near and far

acuity, she could not perform the jobs.

Id.

For numerous reasons, this argument is misguided. As a preliminary matter,

the Court finds the ALJ’s RFC analysis is supported by substantial evidence.

Despite Plaintiff’s contentions, the ALJ’s finding that Plaintiff could maintain only

frequently or less field of vision, near acuity, far acuity and depth perception does

not signify that during the remaining periods Plaintiff would effectively lose all

vision in both eyes. Moreover, the record does not support a finding that Plaintiff’s

right eye symptoms are so severe they could effectively produce total vision loss in

her right eye for up to one-third of her day. Even Plaintiff herself has not previously

disclosed her right eye symptoms as being this severe. In her own words, Plaintiff

described her floaters as “intermittent” and “coming and going” and any irritation

and watering as occurring “twice a week.” (Tr. 66-67, 452). Furthermore, in his

RFC analysis the ALJ not only adopted the recommendations of the state agency

consultants but imposed greater restrictions than advised. (Tr. 48). While Plaintiff

may contend that the ALJ should have taken into greater account the intermittent

nature of Plaintiff’s claimed impairment in her right eye, Plaintiff cites to no specific

evidence beyond a vague reference to her “testimony,” which for the reasons

discussed above falls short of establishing what is claimed in Plaintiff’s brief. Thus,

though Plaintiff may disagree with the ALJ’s RFC determination, the Court finds

that it is supported by substantial evidence and will not substitute its own judgment

for that of the Commissioner. See Vaughn v. Heckler, 727 F.2d 1040 (11th Cir. 1984);

see also Buley v. Comm'r of Soc. Sec., 739 F. App'x 563, 569 (11th Cir. 2018)

(“Although an ALJ will consider a treating source's opinion on the claimant's

residual functional capacity, the final responsibility for deciding this issue is

reserved to the Commissioner.”); Castle v. Colvin, 557 F. App'x 849, 853 (11th Cir.

2014) (finding that “the ALJ did not ‘play doctor’ in assessing [the claimant's] RFC,

but instead properly carried out his regulatory role as an adjudicator responsible for

assessing [the claimant's] RFC”).

Having affirmed the ALJ’s RFC analysis, the Court next turns to whether a

proper hypothetical was posed to the vocational expert in determining Plaintiff’s

employability. An ALJ “must pose hypothetical questions to the vocational expert

that encompass all of the claimant's impairments.” Winschel v. Comm'r of Soc. Sec.,

631 F.3d 1176, 1180 (11th Cir. 2011). In this instance, the ALJ accurately

articulated to the vocational expert his conclusions as to Plaintiff’s RFC when

inquiring as to whether there were jobs in the national economy which Plaintiff

could preform given the stated limitations. (Tr. 46-48, 77). Therefore, the Court

finds the ALJ did not error in relying on the vocational expert’s testimony.

Finally, even if this Court were to accept Plaintiff’s assertions concerning the

persistence of symptoms in her right eye, as pointed out by Defendant two of the

three jobs cited by the vocational expert require no near acuity, far acuity, depth

perception, and field of vision. See Cleaner, Housekeeping, DOT 323.687-014, 1991

WL 672783 (4th ed. 1991) (“Near Acuity: Not Present - Activity or condition does

not exist,” “Far Acuity: Not Present - Activity or condition does not exist,” “Depth

Perception: Not Present - Activity or condition does not exist,” “Field of Vision:

Not Present - Activity or condition does not exist”); Recreation Aide, DOT

195.367-030, 1991 WL 671600 (4th ed. 1991) (“Near Acuity: Not Present - Activity

or condition does not exist,” “Far Acuity: Not Present - Activity or condition does

not exist,” “Depth Perception: Not Present - Activity or condition does not exist,”

“Field of Vision: Not Present - Activity or condition does not exist”) Therefore,

Plaintiff’s argument fails for this reason as well. See Garcia v. Comm'r of Soc. Sec., No.

2:19-cv-877-FTM-MRM, 2021 WL 1037856, at *14 (M.D. Fla. Mar. 18, 2021)

(finding any error in failing to consider additional treatment notes and include

additional visual limitations harmless “because the ALJ identified an occupation,

as a Cleaner/Housekeeping, with sufficient numbers in the national economy that

Plaintiff's RFC would allow her to complete without near or far visual acuity, depth

perception, color vision, or field of vision”); Perez v. Kijakazi, No. 21-cv-23740, 2022

WL 17094932, at *7 (S.D. Fla. Nov. 3, 2022), report and recommendation adopted,

2022 WL 17093619 (S.D. Fla. Nov. 21, 2022) (finding any error to include

additional visual limitations regarding near acuity, far acuity, depth perception, and

color vision in the hypothetical posed to the VE harmless where the plaintiff's past

relevant work, which the VE testified that the plaintiff could perform, did not

require near acuity, depth perception, or color vision, and only occasionally

required far acuity).

IV.

Accordingly, after consideration, 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.

DONE AND ORDERED in Tampa, Florida, on this 6th day of March 2024.

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ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record