DOVICO

v.

COMMISSIONER OF SOCIAL SECURITY

ΟΡΙΝΙΟΝN AND ORDER² I. Status Allen L. Dovico (“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 a torn medial meniscus in his right knee, degenerative disc disease in the spine, arthritis in all of his joints, nerve damage, limited range of motion in his neck and shoulders, frequent [fn 1]: Mr. O'Malley was sworn in as Commissioner of the Social Security Administration on December²⁰, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure, Mr. O'Malley should be substituted for Kilolo Kijakazi 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). [fn 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. 9), filed July 24, 2023; Reference Order (Doc. No. 11), entered July 28, 2023. headaches, tinnitus, insomnia, frequent heart burn, severe acid reflux, and depression. Transcript of Administrative Proceedings (Doc. No. 8; “Tr.” or “administrative transcript”), filed July 24, 2023, at 82-83, 94-95, 111, 123, 290. On June 25, 2018, Plaintiff protectively filed applications for DIB and SSI, alleging a disability onset date of April 7, 2018. Tr. at 258-59 (DIB).³ The applications were denied initially, Tr. at 80, 82-93, 106, 136-38 (DIB); Tr. at 81, 94-105, 107, 139-41 (SSI), and upon reconsideration, Tr. at 108, 110-21, 134, 145-50 (DIB); Tr. at 109, 122-33, 135, 151-56 (SSI). On May 27, 2020, an Administrative Law Judge (“ALJ”) held a hearing, during which she heard from Plaintiff (who appeared with a non-lawyer representative) and a vocational expert (“VE”).⁴ Tr. at 45-78. At the time of the hearing, Plaintiff was forty-eight (48) years old. Tr. at 51. On June 9, 2020, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 26-37.

Thereafter, Plaintiff requested review of the Decision by the Appeals Council and submitted argument in support of the request. Tr. at 14-15 [fn 3]: The SSI application was not located in the administrative transcript. The DIB application was actually completed on August 24, 2018. See Tr. at 258. The protective filing date for both the DIB and SSI applications is listed elsewhere in the administrative transcript as June 25, 2018. Tr. at 82, 111 (DIB), 94, 123 (SSI). [fn 4]: The hearing was held via telephone, with Plaintiff's consent, because of extraordinary circumstances caused by the initial stages of the COVID-19 pandemic. Tr. at 47. (Appeals Council exhibit list and order), 255-57 (request for review). On November 13, 2020, the Appeals Council denied Plaintiffs request for review, Tr. at 11-13, making the ALJ's Decision the final decision of the Commissioner. On May 25, 2023, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), through counsel, seeking judicial review of the Commissioner's final decision. Plaintiff on appeal argues the ALJ erred at step two by failing to find Plaintiff's depressive disorder and anxiety are severe impairments, and then in assessing the relevant mental functioning criteria set forth in the Regulations, and at later steps, by failing to account for the impairments as part of the residual functional capacity (“RFC”). Plaintiffs Social Security Brief (Doc. No. 13; “Pl.'s Br."), filed August 23, 2023, at 11-17. On September 19, 2023, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 14; “Def.'s Mem.”) addressing Plaintiffs argument. Then, Plaintiff on October 3, 2023 filed Plaintiffs Reply to Defendant's Brief (Doc. No. 15; "Reply"). After a thorough review of the entire record and consideration of the parties' respective arguments, the undersigned finds that the Commissioner's final decision is due to be affirmed. [fn 5]: Plaintiff sought and received additional time from the Appeals Council to file a civil action. Tr. at 1-2, 4, 5-6, 10.

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 28-36. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since April 7, 2018, the alleged onset date.” Tr. at 28 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following [fn 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). severe impairments: degenerative disc disease, degenerative joint disease, and obesity." Tr. at 28 (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 in²⁰ [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 29 (emphasis and citation omitted).

The ALJ determined that Plaintiff has the following RFC: [Plaintiff can] perform less than the full range of light work as defined in²⁰ CFR [§§] 404.1567(b) and 416.967(b). He is able to perform jobs where he is allowed standing or sitting without leaving the workstation. He is able to occasionally climb stairs and ramps, kneel, crouch and crawl, frequently able to balance and stoop and never able to climb ladders, ropes or scaffolds. He must avoid concentrated exposure to cold and to hazards.

Tr. at 30 (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 “Beekeeper," a "Forklift operator,” a “Kitchen manager," an "Assistant retail manager," a "Cook,” and a “Janitor.” Tr. at 35 (some emphasis and citation omitted). The ALJ then proceeded to the fifth and final step of the sequential inquiry. Tr. at 35-36. After considering Plaintiff's age (“46 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 35-36 (emphasis omitted), such as “Toll collector,” “Ticket taker,” and “Ticket seller.” Tr. at 36. The ALJ concluded Plaintiff “has not been under a disability . . . from April 7, 2018, through the date of th[e D]ecision." Tr. at 36 (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, 587 U.S. 97, 103 (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 Plaintiff argues the ALJ erred in assessing his mental impairments at step two and in later steps. Pl.'s Br. at 11-17. According to Plaintiff, the ALJ should have found at step two that he suffers from severe mental disorders, and because the ALJ at later steps in the sequential inquiry did not sufficiently account for his mental impairments, the matter must be remanded for the ALJ to do so. 7 Id. Responding, Defendant argues Plaintiff did not meet his burden of showing at step two that he has severe mental impairments. Def.'s Mem. at 6- 9. Further, Defendant contends the ultimate RFC assigned is supported by substantial evidence. Id. at 9-13.

Step two of the sequential evaluation process requires the ALJ to determine whether a claimant suffers from a severe impairment. See 20 C.F.R. § 404.1520(a)(4)(ii). At this step, "[a]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability [fn 7]: Plaintiff actually seeks reversal with benefits, or in the alternative, remand. Pl.'s Br. at 17. This is not a reversal with benefits case. to work[.]" Brady v. Heckler, 724 F. 2d 914, 920 (11th Cir. 1984). “This step is a 'threshold inquiry' and 'allows only claims based on the most trivial impairments to be rejected.” Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1265 (11th Cir. 2019) (per curiam) (quoting McDaniel v. Bowen, 800 F. 2d 1026, 1031 (11th Cir. 1986)). "[T]he 'severity' of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F. 2d 1544, 1547 (11th Cir. 1986). In the context of a Social Security disability benefits case, a condition is severe if it affects a claimant's ability to maintain employment. See id. A claimant has the burden of proving that impairments are severe. See Bowen, 482 U.S. at 146 n.5 (recognizing the claimant's burden of proof at step two to show “a medically severe impairment or combination of impairments”). Further, the impairment either “must have lasted or must be expected to last for a continuous period of at least 12 months."