LESLIE R. HOFFMAN, Magistrate Judge.
Daniel Russell Graiber ("Claimant") appeals the final decision of the Commissioner of Social Security ("the Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") payments. Claimant raises two arguments challenging the Commissioner's final decision, and, based on those arguments, requests that the matter be reversed and remanded for further administrative proceedings. Doc. No. 18, at 10, 15, 25. The Commissioner asserts that the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence and should be affirmed. Id. at 25. It is
On October 18, 2012, Claimant filed applications for DIB and SSI benefits, alleging that he became disabled on August 6, 2010. R. 68. Claimant subsequently amended those applications to remove his allegations of a continuing period of disability and substitute allegations that he suffered from a closed period of disability—July 26, 2012 through July 31, 2013. Id. On November 25, 2014, the ALJ issued a favorable decision finding Claimant disabled for the closed period of disability—July 26, 2012 through July 31, 2013. R. 68-81.
On July 28, 2015, Claimant filed new applications for DIB and SSI benefits, alleging a disability onset date of November 26, 2014. R. 252-58, 278. His claims were denied initially and on reconsideration, and he requested a hearing before an ALJ. R. 129-31, 135-44, 146-48. A hearing was held before the ALJ on January 3, 2018, at which Claimant was represented by an attorney. R. 32-63. Claimant and a vocational expert ("VE") testified at the hearing. Id.
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. 247-48. On November 2, 2018, the Appeals Council denied the request for review. R. 1-8. Claimant now seeks review of the final decision of the Commissioner by this Court. Doc. No. 1.
At the beginning of the hearing, the ALJ asked Claimant's counsel whether counsel and Claimant had the opportunity to review the file, to which counsel responded affirmatively. R. 34. Counsel for Claimant stated that there were no objections to the documents contained in the exhibit file. R. 35. Counsel for Claimant thereafter raised the issue of Claimant's prior closed period of disability. R. 37-39. Counsel argued "that these conditions still persist past '14. We still have them in '16 and '17, so it is our contention that he is still disabled, and should be found disabled at this point." R. 38-39.
At the time of the hearing, Claimant was forty-two years old. R. 39. He completed high school; he obtained both an associate's and bachelor's degree in college. R. 40-41. Claimant testified that he was not currently employed, but that he had engaged in some work after the alleged disability onset date. R. 41. He testified that in 2017, he worked in security at Walt Disney World. Id. Claimant testified that he was "let go" because he could not "meet the demands of their hours, and even under light duty restrictions, [he] couldn't accommodate their requests." Id. He worked approximately 30 hours per week. Id. Claimant later acknowledged that he had a disciplinary history during his employment. R. 53-54. In 2014, Claimant worked fulltime doing counter sales at O'Reilly; he also did minimal stocking. R. 42. Claimant also has prior experience working full time performing services related to internet, phone, and television. R. 43. His prior work experience also included custom closet and closet organizer installation, as well as construction and running a remodeling business. R. 43-45.
Claimant testified that he would currently be prevented from performing even sedentary work because he cannot sit for long periods of time — sitting for prolonged periods causes spasms in his back and makes it "lock up." R. 46. He takes medication for the muscle spasms and for pain. R. 47. The medications impair his ability to drive. Id. Claimant stated that he sees a doctor for pain management, and that he also regularly visits emergency rooms due to his back. R. 56. He also has received nerve facet injections. R. 55. Claimant uses ice and heat on his back every day. R. 57.
During the hearing, the ALJ posed the following hypothetical question to the VE:
R. 61. The VE confirmed that such individual could not perform any of Claimant's past relevant work. Id. However, the VE testified that there were other jobs in the national economy at the sedentary level that the person could perform, such as addresser, call out operator, or charge account clerk. R. 61-62. Nonetheless, if the individual could only sit or stand for 20 minutes at a time, sit for less than 2 hours in an 8-hour period, must walk every 15-minutes, required a sit/stand/walk at will option, could rarely lift more than 10 pounds per day, and would miss more than 4 days of work per month, the VE confirmed that there were no jobs in the national economy that the person could perform. R. 62. The VE further confirmed that missing 4 days of work per month would preclude any job in the national economy. R. 62-63.
After considering the entire record, the ALJ performed the five-step evaluation process as set forth in 20 C.F.R. § 404.1520(a). R. 15-25.
After careful consideration of the entire record, the ALJ found that Claimant had the residual functional capacity ("RFC") to perform sedentary work as defined in the Social Security regulations,
R. 19. The ALJ concluded that Claimant was unable to perform any past relevant work, which included work as a merchandise deliverer, parts salesperson, cable television installer, construction worker I, house repairer, or automobile mechanic. R. 23. However, considering Claimant's age, education, work experience, and RFC, as well as the testimony of the VE, the ALJ concluded that there were other jobs existing in significant numbers in the national economy that Claimant could perform, including addresser, call out operator, and charge account clerk. R. 24. Accordingly, the ALJ concluded that Claimant was not disabled. R. 25.
Claimant having exhausted his 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 in failing to develop the record by obtaining and considering evidence relevant to the prior favorable finding of a closed period of disability; (2) the ALJ erred in finding that Claimant's subjective complaints of pain were not entirely credible. Doc. No. 18, at 10, 15. I will address these contentions in turn.
"[T]he claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citations omitted). Nonetheless, the ALJ has a basic duty to develop a full and fair record. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam) (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
Claimant contends that the prior determination regarding his closed period of disability is "highly relevant" to his current applications because he is again alleging that his back impairment is disabling. Doc. No. 18, at 10. He claims that the ALJ's reference to the prior disability determination; counsel's reference to the closed period of disability at the hearing before the ALJ; and the results of several MRIs contained in the current record, which date prior to the current application for disability benefits, demonstrate that evidence utilized in the prior disability determination could support his current claim of disability. Id. at 11. Claimant argues that the ALJ erred because, despite this evidence, the ALJ did not obtain other (unspecified) evidence of Claimant's disability or account for prior evidence in the decision. Id.
Notably, the previous ALJ's decision regarding the prior closed period of disability is in the current record. R. 68-81. In that decision, the previous ALJ found that as of July 31, 2013, Claimant had regained the RFC to perform a full range of sedentary work. R. 77. From the transcript of the hearing in this matter, it is apparent that the current ALJ reviewed that prior decision. See R. 37-38. The current ALJ also noted in the decision that Claimant had a prior favorable disability determination. R. 20.
Thus, Claimant is not arguing that the ALJ failed to consider that he was previously found disabled under the Social Security Act. Instead, Claimant is arguing that the ALJ should have obtained and/or considered additional evidence underlying that prior disability determination. Doc. No. 18, at 10-11. However, in the joint memorandum, Claimant does not explain why he himself did not develop the record regarding the prior closed period of disability in the current case, or why he did not introduce evidence regarding such disabling limitations to support his current claim. Claimant also does not specify what records the ALJ failed to obtain that were considered in relation to his prior application that resulted in the favorable decision regarding the closed period of disability. Moreover, Claimant does not state how such evidence would have resulted in a different decision in this case. "[T]he ALJ's duty to develop the record does not relieve the Plaintiff of his burden of proving that he is disabled, and consequently, the Plaintiff is still responsible for producing evidence in support of his claim." Cosby v. Astrue, No. 2:11-cv-264-FtM-SPC, 2012 WL 717860, at *10 (M.D. Fla. Mar. 6, 2012) (citing Ellison, 355 F.3d at 1276). Without demonstrating how the ALJ's failure to procure such unspecified evidence related to Claimant's prior closed period of disability resulted in "evidentiary gaps in the record which have resulted in prejudice," Claimant has not shown that the ALJ's decision should be disturbed. See Graham, 129 F.3d at 1423.
For these reasons, I find Claimant's first assignment of error unpersuasive.
A claimant may establish disability through his own testimony of pain or other subjective symptoms. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). A claimant seeking to establish disability through his or her own testimony must show:
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). "If the ALJ decides not to credit a claimant's testimony as to her pain, he must articulate explicit and adequate reasons for doing so." Foote, 67 F.3d at 1561-62. The Court will not disturb a clearly articulated credibility finding that is supported by substantial evidence. Id. at 1562.
If the ALJ determines that the claimant has a medically determinable impairment that could reasonably produce the claimant's alleged pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and persistence of those symptoms limit the claimant's ability to work. 20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited to, the claimant's history, the medical signs and laboratory findings, the claimant's statements, medical source opinions, and other evidence of how the pain affects the claimant's daily activities and ability to work. Id. § 404.1529(c)(1)-(3). Factors relevant to the ALJ's consideration regarding a claimant's allegations of pain include: (1) daily activities; (2) the location, duration, frequency, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of medication; (5) treatment, other than medication, the claimant receives for pain; (6) measures used for pain relief; and (7) other factors pertaining to functional limitations and restrictions to pain. Id. § 404.1529(c)(3)(i)-(vii).
Here, the ALJ relied on several reasons for finding that Claimant's statements regarding the intensity, persistence, and limiting effects of his alleged symptoms were not entirely consistent with the record, each of which are contemplated under the applicable regulations. Those considerations included: (1) unremarkable findings in the objective evidence of record; (2) Claimant's activities of daily living; (3) Claimant's course of treatment and use of prescription medications (and the lack of evidence that Claimant did not receive significant relief from medications); and (4) Claimant's considerable work history. R. 20-23.
Claimant contends that the ALJ's considerations were not based on the correct legal standards or supported by substantial evidence. Doc. No. 18, at 16. First, Claimant contends that the activities of daily living cited by the ALJ do not support the ALJ's determination because they are not relevant to his ability to work 8 hours per day, 5 days per week. Id.
In the decision, the ALJ stated:
R. 23 (citations omitted). Claimant is correct that participation in activities of daily living does not necessarily preclude a finding of disability. See Lewis, 125 F.3d at 1441. Nonetheless, Claimant has not explained how any of the specific activities of daily living listed by the ALJ "are inconsistent with the RFC and/or consistent with his alleged disabling symptoms." See Bliven v. Comm'r of Soc. Sec., No. 6:13-cv-1150-Orl-18TBS, 2014 WL 4674201, at *9 (M.D. Fla. Sept. 18, 2014). In addition, the ALJ did not solely consider Claimant's activities of daily living in reaching the credibility determination. See id. (citation omitted) ("Lewis does not stand for the notion that an ALJ must never consider a claimant's daily activities, or that an ALJ's consideration of such activities warrants remand. The ALJ is meant to consider a claimant's daily activities in combination with other factors, as stated in 20 CFR § 404.1529(c)."). Accordingly, I find no error in the ALJ's consideration of Claimant's activities of daily living as one factor in her consideration regarding Claimant's credibility.
Second, Claimant argues that regarding his course of treatment and prescription medications, the ALJ cited this basis for rejecting his testimony but failed to consider that despite taking medication, Claimant still had to undergo multiple facet injections for his pain. Doc. No. 18, at 17. Accordingly, Claimant contends that undergoing these injections would "lead[] one to believe that [Claimant's] pain medications were not relieving his pain symptoms." Id. In this regard, the ALJ stated:
R. 23. Again, the effectiveness of medication is a consideration explicitly contemplated under the Social Security Regulations. 20 C.F.R. § 404.1529(c)(3)(iv). Claimant's allegation that the ALJ erred in failing to also consider that he underwent facet injections is unpersuasive. Claimant does not explain how the ALJ's credibility determination was rendered erroneous by such an alleged omission. Moreover, I note that the ALJ gave substantial weight to Claimant's treating physician, Dr. Vijay Katukuri, M.D., who ordered such injections. R. 22. The ALJ specifically cited to Dr. Katukuri's treatment records in the decision. Id. (citing Exhibit B7F). Thus, although not specifically articulated in relation to the credibility finding, Claimant has not established that the ALJ failed to consider this evidence in the decision.
Third, Claimant contends that the ALJ erred in relying on his work history, and in specifically concluding that Claimant provided contradictory statements regarding why he was dismissed from his last job. Doc. No. 18, at 17. The ALJ stated:
R. 23. Again, Claimant's work history subsequent to the alleged disability onset date is a proper consideration for the ALJ. See, e.g., McEachron v. Colvin, No. 8:15-cv-1263-T-JRK, 2016 WL 4751714, at *6 (M.D. Fla. Sept. 13, 2016) ("[T]he ALJ appropriately considered Plaintiff's part-time waitressing work in assessing Plaintiff's RFC and in finding her capable of performing other work in the national economy."); O'Donnell v. Colvin, No. 8:13-cv-2958-T-33TGW, 2015 WL 328244, at *6 (M.D. Fla. Jan. 23, 2015) ("The law judge could reasonably conclude that the plaintiff's part-time job supports a conclusion that the plaintiff could engage in light work."). Claimant contends that the transcript of the hearing does not support the ALJ's finding that he made contradictory statements regarding his dismissal from his employment. However, the transcript does support such a finding because although Claimant first stated he was discharged due to his inability to comply with the physical mandates of the job, he later acknowledged that he had been disciplined during his tenure and that management had problems with his attitude.
Finally, I note that Claimant takes no issue with the ALJ's consideration of the unremarkable findings in the objective evidence of record to support her conclusion; nor does he argue that the ALJ erred in the weight afforded to treating and non-treating sources or third parties. Accordingly, I find that Claimant has waived any challenge to these findings. Cf. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (refusing to consider an argument that the claimant failed to raise before the district court). I also note that the ALJ credited Claimant's subjective complaints, in part. The ALJ specifically articulated in the decision that the RFC determination restricting Claimant to sedentary work was based in part on Claimant's subjective complaints of knee and back pain. R. 20.
In sum, "[a] clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Foote, 67 F.3d at 1562; see also Hill v. Comm'r of Soc. Sec., No. 2:14-cv-708-FtM-CM, 2016 WL 1253579, at *7 (M.D. Fla. Mar. 31, 2016) ("[I]t is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses." (citing Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015))). "The question is not . . . whether the ALJ could have reasonably credited [the claimant's] testimony, but whether the ALJ was clearly wrong to discredit it." Werner v. Comm'r, of Soc. Sec., 421 F. App'x 935, 939 (11th Cir. 2011).
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(a).
R. 53-54.
