LESLIE R. HOFFMAN, Magistrate Judge.
Janice Proctor Cooper ("Claimant") appeals the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for disability benefits. Doc. 1. Claimant raises two arguments challenging the Commissioner's final decision, and, based on those arguments, requests that the matter be remanded for further administrative proceedings. Doc. No. 17, at 7-9, 11-13. The Commissioner asserts that the decision of the Administrative Law Judge ("the ALJ") is supported by substantial evidence and should be affirmed. Id. at 9-11, 14-17. The undersigned
On September 25, 2014, Claimant filed an application for disability insurance benefits. She alleged that she became disabled on July 26, 2011. R. 218.
After the hearing, the ALJ issued an unfavorable decision finding that Claimant was not disabled. R. 15-25. Claimant sought review of the ALJ's decision by the Appeals Council. R. 215-16, 217. On July 9, 2018, the Appeals Council denied the request for review. R. 1-7. Claimant now seeks review of the final decision of the Commissioner by this Court. Doc. No. 1.
After consideration of the entire record, the ALJ found that Claimant met the insured status requirements of the Social Security Act through December 31, 2015. R. 18. The ALJ concluded that Claimant had not engaged in substantial gainful activity since the alleged disability onset date. Id.
Based on a review of the record, the ALJ found that Claimant had the residual functional capacity ("RFC") to perform light work as defined in the social security regulations,
R. 20. After considering the Claimant's RFC and the testimony of the VE, the ALJ concluded that Claimant was capable of performing past relevant work as a cleaner. R. 24. The ALJ found that this work does not require the performance of work-related activities precluded by Claimant's RFC. Id. The ALJ also found that in comparing Claimant's RFC with the physical and mental demands of the job, Claimant could perform the work of a cleaner as performed or as generally performed. Id. Accordingly, the ALJ concluded that Claimant was not disabled. Id.
Claimant having exhausted her administrative remedies, the Court has jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). The scope of the Court's review is limited to determining whether the Commissioner applied the correct legal standards and whether the Commissioner's findings of fact are supported by substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The Commissioner's findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which is defined as "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner's decision, when determining whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the evidence preponderates against the Commissioner's decision, the reviewing court must affirm if the decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
In the Joint Memorandum, which I have reviewed, Claimant raises two assignments of error: (1) the ALJ erred at step three of the sequential evaluation process in determining that Claimant did not have an impairment or combination of impairments equal in severity to one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (2) the ALJ erred at step four of the sequential evaluation process in finding that Claimant's past work as a cleaner qualified as past relevant work. I will address each of these contentions in turn.
An individual claiming Social Security disability benefits must prove that he or she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). The five steps in a disability determination include: (1) whether the claimant is performing substantial, gainful activity; (2) whether the claimant's impairments are severe; (3) whether the severe impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant can return to his or her past relevant work; and (5) based on the claimant's age, education, and work experience, whether he or she could perform other work that exists in the national economy. See generally Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
At step three of the sequential evaluation process, the Listing of Impairments describes each major impairment considered severe enough to preclude a person from any gainful activity regardless of age, education, or prior work experience. See 20 C.F.R. § 404.1525(a). "Part A of the Listing of Impairments contains medical criteria that apply to adults age 18 and over." Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002).
Id. (citations omitted). The claimant bears the burden of proving that her impairment meets or equals a listed impairment. Nettles v. Astrue, No. 3:09-CV-862-J-MCR, 2010 WL 3394666, at *5 (M.D. Fla. Aug. 26, 2010).
"For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria" and "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The claimant has the burden of presenting "specific medical findings that meet the various tests listed under the description of the applicable impairment," and the claimant must "(1) have a diagnosed condition that is included in the listings and (2) provide objective medical reports documenting that this condition meets the specific criteria of the applicable listing and the duration requirement." Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). "A diagnosis alone is insufficient." Id. (citing 20 C.F.R. § 416.925(c)-(d)).
Here, at step three of the sequential evaluation process, the ALJ concluded that Claimant's impairments, either singly or in combination, did not meet or equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 18. In making this finding, the ALJ stated: "The claimant did not meet the criteria of listing 1.04, as she was able to ambulate within the meaning of listing 1.00B2b." Id.
Listing 1.04A provides:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.
Accordingly, "[t]o meet listing 1.04A, Plaintiff must establish (1) evidence of nerve root compression characterized by neuroanatomic distribution of pain, (2) limitation of motion of the spine, (3) motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss, and (4) positive straight-leg raising test (sitting and supine)." Harris v. Comm'r of Soc. Sec., No. 6:17-cv-622-Orl-41TBS, 2018 WL 3150246, at *3 (M.D. Fla. Apr. 18, 2018) (citation omitted), report and recommendation adopted, 2018 WL 3135997 (M.D. Fla. June 27, 2018). "[T]he medical criteria must be met for a period of twelve continuous months." Castro v. Astrue, No. 8:08-CV-769-T-33TGW, 2009 WL 1975513, at *4 (M.D. Fla. July 8, 2009).
Claimant contends that her lumbar spine impairment meets or medically equals the requirements of Listing 1.04A. She first argues that the ALJ erred in concluding that Listing 1.04A required that Claimant be unable to ambulate within the meaning of Listing 1.00B2b, which defines the "inability to ambulate effectively." Doc. No. 17, at 9. Courts have reached different conclusions on this issue.
Claimant argues that various medical tests, procedures, and diagnoses described in the record support a finding that her impairment meets the Listing. Doc. No. 17, at 7-9. The undersigned agrees that Claimant presented evidence to the ALJ sufficient to establish a qualifying disorder of the spine under Listing 1.04A. Specifically, Claimant points to an MRI of the lumbar spine from November 29, 2015. See R. 794-95. That record demonstrates: (1) grade I spondylolisthesis at LS-S1; (2) disc bulging at L1-2, L2-3, L3-4 and L4-5; (3) broad-based posterior disk herniation and associated radial tear at L5-S 1; (4) spinal stenosis at L3-4; and (5) neural encroachment from L2-3 through LS-S1; and (5) impingement upon the bilateral S1 nerve roots, right more so than left. R. 795. However, this is but one of the factors that must be present in order to satisfy Listing 1.04A.
Next, the undersigned agrees that the Claimant presented some evidence that she suffered limitation of motion of the spine, another factor required for satisfying Listing 1.04A. See R. 471, 684-85. The first cited record is from June 2013, which indicates decreased range of motion of the lumbar spine, although it also indicates full range of motion of the cervical spine, as well as normal gait and posture. R. 471. The second record is from April 2015, which also documents decreased range of motion of Claimant's lumbar spine; however, the record also states that Claimant had normal range of motion of the cervical spine and normal posture and gait. R. 684-85. Claimant cites no other records in support, but the undersigned will presume for purposes of this case that decreased limitation of the lumbar spine is sufficient to satisfy that requirement of Listing 1.04A. However, this is where Claimant's argument fails as she has not met the remaining requirements of the Listing.
Specifically, Claimant contends that the record demonstrates evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
In addition, the undersigned has not located record evidence demonstrating "motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss," another requirement of Listing 1.04A. To the contrary, the record evidence indicates that Claimant did not have motor loss accompanied by sensory or reflex loss. See, e.g., R. 356 (no focal deficits); R. 471 (sensory intact); R. 684 (no motor deficit); R. 685 (sensation intact); R. 685 (2/4 reflex, but with 5/5 muscle strength, intact sensation, and no motor deficit); R. 693 (motor "grossly within normal limits").
Moreover, Claimant cites to record evidence of positive straight leg raise tests, although she admits that those test results do not specify whether the tests were conducted in sitting or supine positions. See R. 519, 647, 685.
Thus, as the Commissioner argues, the evidence on which Claimant relies is insufficient to satisfy all of the criteria for Listing 1.04A. Even assuming that the evidence sufficiently demonstrates limitation in motion of the spine, the evidence does not clearly demonstrate nerve root compression characterized by neuro-anatomic distribution of pain, motor loss with sensory or reflex loss, and positive straight leg raise testing in both the sitting and supine positions. "While Plaintiff's back . . . undoubtedly impairs [her] physical functioning to a great degree, the evidence upon which [she] relies simply is insufficient to demonstrate that the requirements of listing 1.04A are met." Rouse, 2010 WL 457320, at *5; see also Smith, 2011 WL 843969, at *13 ("Even though the Plaintiff presented some evidence demonstrating aspects of listing 1.04(A), `[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.'" (quoting Sullivan, 493 U.S. at 530)). Accordingly, I recommend that the Court reject Claimant's first assignment of error that the ALJ erred in finding that her impairments did not meet the criteria of Listing 1.04A.
At step four of the sequential evaluation process, the ALJ must determine the claimant's RFC and ability to perform past relevant work. Phillips, 357 F.3d at 1238. A claimant is not disabled if he or she is capable of performing past relevant work, which is defined as work done within the last fifteen years constituting substantial gainful activity that lasted long enough for the claimant to learn the work. See 20 C.F.R. § 404.1560(b)(1); see also Eyre v. Comm'r of Soc. Sec., 586 F. App'x 521, 523-24 (11th Cir. 2014) (per curiam).
Substantial gainful activity is defined as "work activity that is both substantial and gainful." 20 C.F.R. § 404.1572. Work activity is substantial if it "involves doing significant physical or mental activities," and is gainful if it is done "for pay or profit." 20 C.F.R. § 404.1572(a). The primary consideration in determining whether prior work was substantial gainful activity is earnings from that prior work. Id. § 404.1574(a)(1). "The ALJ ordinarily will consider that the claimant either was or was not engaged in substantial gainful activity if her average monthly earnings are above or below a certain amount established by the Social Security Administration's earnings guidelines." Eyre, 586 F. App'x at 524 (citations omitted). However, earnings are not dispositive. See id. ("[T]he ALJ can consider other information, including whether the work performed was `comparable to that of unimpaired people in [the claimant's] community who [were] doing the same or similar occupations as their means of livelihood, taking into account the time, energy, skill, and responsibility involved in the work.'" (citing 20 C.F.R. §§ 404.1574(a)(1), (b)(3)(ii)(A), 416.974(a)(1), (b)(3)(ii)(A))).
Claimant contends that the ALJ failed to provide sufficient analysis to support a finding that Claimant's prior position as a cleaner was performed at substantial gainful activity levels and constituted past relevant work. Doc. No. 17, at 12. To the contrary, Claimant contends that the record is insufficient to demonstrate that her prior work as a cleaner constituted past relevant work— her earnings records fail to demonstrate that she performed this work at substantial gainful activity levels; and the ALJ did not question Claimant at the hearing regarding what years she worked as a cleaner, for how long, or how much money she earned from that position. Id. at 12-13. Notably, Claimant does not argue that her position as a cleaner did not involve significant physical or mental activities or that it was not done for pay or profit, see 20 C.F.R. § 404.1572; instead, she only contends that her earnings may have been performed at less than substantial gainful activity levels. Doc. No. 17, at 13.
As an initial matter, the Commissioner correctly notes that Claimant did not raise this issue to the ALJ, nor did her attorney object to the VE's testimony identifying Claimant's prior work as a cleaner as past relevant work. As such, the ALJ was not obligated to specifically address the concerns that Claimant now raises before this Court. See, e.g., New v. Comm'r of Soc. Sec., No. 5:12-cv-211-Oc-18PRL, 2013 WL 3804846, at *3 (M.D. Fla. July 8, 2013) (collecting cases and stating that because Claimant failed to raise this issue before the ALJ or object to the VE's testimony regarding Claimant's past relevant work, "the ALJ was not obligated to specifically address the concerns—or rather, arguments—that [Claimant] now raises); Whittemore v. Comm'r of Soc. Sec., No. 3:09-CV-1242-J-MCR, 2011 WL 722966, at *5 (M.D. Fla. Feb. 23, 2011) (finding that "the ALJ was not required to specifically discuss his reasons for concluding Plaintiff's past work as a real estate agent qualifies as substantial gainful activity" because the plaintiff had not raised the issue to the ALJ or objected to the VE's work summary); see also Baker v. Berryhill, No. 1:17-CV-217-MW-GRJ, 2018 WL 3056699, at *8 (N.D. Fla. June 1, 2018), report and recommendation adopted, 2018 WL 3056671 (N.D. Fla. June 20, 2018) ("Neither Plaintiff nor her attorney ever suggested that her work as a cashier might not be past relevant work. Thus, to the extent this could be considered error Plaintiff essentially invited any error about whether her work as a cashier constituted past relevant work."). Accordingly, because Claimant had the burden of proving that her position as a cleaner did not qualify as past relevant work, see Barnes, 932 F.2d at 1359, I recommend the Court find that she failed to carry that burden here.
Moreover, substantial record evidence supports the ALJ's conclusion that Claimant's prior work as a cleaner constituted past relevant work. The record includes a Work History Report, in which Claimant states that she had worked as a day laborer since 1978. R. 297, 299. In that job, she cleaned, mopped, swept offices, and dumped trash; she reportedly worked 4 hours per day, 5 days per week, and she was paid $8.50 per hour. Id. A report prepared after consultative examination at the reconsideration level also states that Claimant worked as a day laborer cleaning offices from 1978 through 2011. R. 116. Claimant's earnings records are available in the record; the records provide the employer, dates, and annual amount of pay received from employment, although those records do not delineate the type of work Claimant performed at each place of employment. See R. 245-48, 251-54; 256-60.
Claimant notes that her highest year of earnings in the past fifteen years was 2007, in which she earned a total of $11,298.09. See R. 252, 260. The monthly substantial gainful activity amount in 2007 was $900.00 per month. See Social Security Administration, Substantial Gainful Activity, available at https://www.ssa.gov/oact/cola/sga.html (last visited June 27, 2019).
Finally, in concluding that Claimant's prior work as a cleaner constituted past relevant work, the ALJ relied on the testimony of the VE, without objection by Claimant's counsel. At the hearing before the ALJ, the VE stated that she had reviewed the exhibits from Claimant's file made available to her before the hearing. R. 46. The VE testified that the record reflected Claimant's prior relevant work as a cleaner, which is unskilled work that the Dictionary of Occupational Titles (DOT) classifies as light work with a specific vocational preparation (SVP) level of two. R. 47. The VE confirmed that a person with Claimant's RFC could perform the position of cleaner. Id. "An ALJ may rely on a VE's testimony regarding the demands of a plaintiff's past relevant work and the plaintiff's ability to perform her past relevant work." New, 2013 WL 3804846, at *5 (citing 20 C.F.R. § 416.960(b)(2); Savor v. Shalala, 868 F.Supp. 1363, 1365 (M.D. Fla. 1994)); see also Curcio v. Comm'r of Soc. Sec., 386 F. App'x 924, 926 (11th Cir. 2010) ("[T]he Social Security regulations clearly allow that the Commissioner may rely on a VE for her knowledge or expertise."). "Because an ALJ may properly consider information in the DOT and a VE's testimony in determining whether a claimant can still perform her past relevant work, there was substantial evidence to support the ALJ's decision as to this issue in this case." Waldrop v. Comm'r of Soc. Sec., 379 F. App'x 948, 953 (11th Cir. 2010). Accordingly, I recommend that the Court reject Claimant's second assignment of error that the ALJ erred in finding that her prior work as a cleaner constituted past relevant work.
Upon consideration of the foregoing, it is
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
20 C.F.R. §§ 404.1567(b), 416.967(b).
