CATHLEEN MARIE MULLINS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Case No.: 8:20-cv-1323-DNF
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
October 28, 2021
DOUGLAS N. FRAZIER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Cathleen Marie Mullins seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA“) denying her claim for a period of disability and disability insurance benefits. The Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed a joint memorandum setting forth their respective positions. As explained below, the decision of the Commissioner is REVERSED and REMANDED pursuant to
A. Social Security Eligibility
The law defines disability as the inability to do 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.
B. Standard of Review
The Commissioner‘s findings of fact are conclusive if supported by substantial evidence.
The ALJ must follow five steps in evaluating a claim of disability.
If the claimant cannot perform past relevant work, the ALJ must determine at step five whether the claimant‘s RFC permits her to perform other work that exists in the national economy.
The claimant bears the burden of proof through step four. Atha, 616 F. App‘x at 933. If the claimant meets this burden, then the burden temporarily shifts to the Commissioner to establish the fifth step. Id.;
Plaintiff filed an application for a period of disability and disability insurance benefits on February 22, 2017, alleging disability beginning July 26, 2016. (Tr. 129, 215-22). The application was denied initially on July 14, 2017, and upon reconsideration on October 2, 2017. (Tr. 129, 141). Plaintiff requested a hearing and a hearing was held on June 26, 2019, before Administrative Law Judge (“ALJ“) Laureen Penn. (Tr. 39-117). On August 6, 2019, the ALJ entered a decision finding Plaintiff not disabled from July 26, 2016, through the date of the decision. (Tr. 15-33).
Plaintiff requested review of the hearing decision, but the Appeals Council denied Plaintiff‘s request on April 15, 2020. (Tr. 1-6). Plaintiff initiated the instant action by Complaint (Doc. 1) filed on June 10, 2020, and the case is ripe for review. The parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc. 17).
D. Summary of ALJ‘s Decision
In this matter, the ALJ found Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2022. (Tr. 17). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 26, 2016, the alleged onset date. (Tr. 17). At step two, the ALJ found that Plaintiff had the following severe impairments: “myasthenia gravis,
Before proceeding to step four, the ALJ found that Plaintiff had the following RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in
20 [C.F.R. §] 404.1567(b) except she can stand and walk for four hours. She can sit for six hours. She can occasionally balance, stoop, crouch, kneel, crawl, and climb stairs and ramps, but cannot climb ladders, ropes, or scaffolds. She can frequently push and pull with the lower extremities bilaterally. She cannot have concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and other pulmonary irritants. She cannot have even moderate exposure to hazards, including heights and heavy machinery. She can perform jobs requiring frequent near acuity and far acuity.
(Tr. 26).
The ALJ found Plaintiff is able to perform her past relevant work as a case manager. (Tr. 31). The ALJ found that in comparing Plaintiff‘s RFC with the physical and mental demands of this work, Plaintiff is able to perform this job as
- administrative assistant, DOT1 169.167-010, sedentary, semi-skilled to skilled, SVP 5
- referral clerk, DOT 205.367-062, sedentary, semi-skilled to skilled SVP 3
- information clerk, DOT 237.367-022, sedentary semi-skilled to skilled, SVP 4
(Tr. 33). The ALJ concluded that Plaintiff had not been under a disability from July 26, 2016, through the date of the decision. (Tr. 33).
II. Analysis
On appeal, Plaintiff raises the following three issues:
- Whether the ALJ erred when she refused to allow Plaintiff to submit a post-hearing memorandum and rebuttal evidence regarding the vocational testimony;
- Whether the ALJ‘s finding that Plaintiff‘s medically determinable migraine headaches are non-severe (and result in no limitations of Plaintiff‘s ability to work) is contrary to law and not supported by substantial evidence;
- Whether the ALJ‘s credibility analysis is generally flawed as a result of the above error, and specifically so because it fails to acknowledge or discuss Plaintiff‘s excellent work history.
(Doc. 22, p. 8, 21-22, 30).
A. Whether the ALJ erred when she refused to allow Plaintiff to submit a post-hearing memorandum and rebuttal evidence regarding the vocational testimony
Plaintiff argues that the ALJ should have considered a June 11, 2019 post-hearing memorandum and objections to the vocational expert‘s testimony. (Doc. 22, p. 8). After an extensive cross-examination of the vocational expert, Plaintiff‘s counsel requested that the record remain open for two weeks so that he would have an opportunity to review the testimony. (Tr. 115). The ALJ refused to keep the record open. (Tr. 115). Plaintiff‘s counsel submitted a Post-Hearing Memorandum and Objections anyway. (Tr. 337-365). In the decision, the ALJ acknowledged Plaintiff‘s counsel‘s request to keep the record open and again denied the request, finding “the claimant‘s representative was given an opportunity to extensively question the vocational expert witness at the hearing.” (Tr. 15). Plaintiff argues that because the ALJ did not consider this post-hearing memorandum, “meaningful judicial review is impossible, an error that can only be corrected by remanding the case to the Agency for further proceedings.” (Doc. 22, p. 9).
Plaintiff submitted a lengthy post-hearing memorandum to the ALJ and then later to the Appeals Council, containing objections to the vocational witness‘s
The Commissioner contends that substantial evidence supports the ALJ‘s alternative step five finding, and the ALJ was not required to consider Plaintiff‘s post-hearing brief. The Commissioner claims that Plaintiff‘s challenge to the ALJ‘s lack of discussion of the post-hearing brief based on HALLEX I-2-6-74(B) and SSR 00-4p fails because Plaintiff cited no binding authority that squarely requires an ALJ to discuss or rule on rebuttal evidence. (Doc. 22, p. 18-19).
While it is uncontested that Plaintiff had a constitutional and statutory right to cross-examine witnesses, present evidence, and challenge the evidence presented, Plaintiff does not claim she was prevented in any manner from exercising these
The Commissioner argues that HALLEX I-2-6-74(B) and SSR 00-4p are inapplicable. She claims the wording of this HALLEX applies to an ALJ‘s conduct at the hearing and not to a post-hearing brief. HALLEX I-2-6-74(B). Even if HALLEX I-2-6-74 applied – which it does not – courts have found that the HALLEX does not create judicially enforceable rights, especially when a plaintiff has not shown prejudice. Mitchell, 2019 WL 13066869, at *3. Likewise, SSR 00-04p includes provisions concerning the use of a vocational expert who provides occupational evidence, but this ruling does not touch on post-hearing briefs or the resolutions of objections or conflicts in them.
Even assuming that the Hallex creates a judicially enforceable right, the Commissioner argues the Plaintiff failed to show harmful error. (Doc. 22, p. 20). On that point, the Court disagrees – especially as to Plaintiff‘s past relevant work.
At the hearing, the ALJ asked the vocational expert to classify Plaintiff‘s past relevant work, noting that Plaintiff indicated she was a case manager. (Tr. 62). For the job description, the ALJ pointed to Exhibit 3E. (Tr. 62). In this Exhibit, Plaintiff
The vocational expert classified this job as a “Case Manager” with DOT # 195.107.030, skilled work, sedentary but performed as light, and an SVP of 7. (Tr. 62). However, this DOT title refers to “Social Worker, Clinical; Social Worker, Health Services.” Social Worker, Medical DICOT 195.107-030, 1991 WL 671574. And the job is described as:
Assists patients and their families with personal and environmental difficulties which predispose illness or interfere with obtaining maximum benefits from medical care: Works in close collaboration with physicians and other health care personnel in patient evaluation and treatment to further their understanding of significant social and emotional factors underlying patient‘s health problem. Helps patient and family through individual or group conferences to understand, accept, and follow medical recommendations. Provides service planned to restore patient to optimum social and health adjustment within patient‘s capacity. Utilizes community resources to assist patient to resume life in community or to learn to live within limits of disability. Prepares patient histories, service plans, and reports. Participates in planning for improving health services by interpreting social factors
pertinent to development of program. Provides general direction and supervision to workers engaged in clinic home service program activities. Works in general hospitals, clinics, rehabilitation centers, drug and alcohol abuse centers, or related health programs. May be employed as consultant in other agencies. Usually required to have knowledge and skill in casework methods acquired through degree program at school of social work.
Id. The duties of the Social Worker do not clearly match the duties that Plaintiff described. Specifically, Plaintiff worked in a health insurance agency and conducted health assessments, reviewed medications and talked to families about care and assistance. (Tr. 271). A social worker helps health care workers to understand the significant social and emotional factors underlying a patient‘s health problems and helps patients and families understand and follow medical recommendations. Social Worker, Medical DICOT 195.107-030, 1991 WL 671574. Plaintiff‘s duties as a case worker are significantly different from the duties of a Social Worker, Medical.
Even though the ALJ found other jobs in the national economy that Plaintiff could perform, the misclassification of Plaintiff‘s past relevant work was not harmless error. Notably, in relying on the vocational expert‘s testimony and in comparing Plaintiff‘s RFC with the physical and mental demands of this work, the ALJ found Plaintiff capable of performing this work as generally performed. (Tr. 31). But Plaintiff did not perform this type of work. As a result, the error also affects the skills Plaintiff acquired in her past relevant work and the ALJ‘s reliance on these
An ALJ “has an affirmative duty to identify and resolve any apparent VE-DOT conflict in a disability hearing.” Washington v. Comm‘r of Soc. Sec., 906 F.3d 1353, 1365 (11th Cir. 2018). While perhaps not a typical conflict, here the vocational expert classified Plaintiff‘s past relevant work incorrectly, and the ALJ did not question the vocational expert on this DOT classification and resolve any conflict between the two jobs. As a result, Plaintiff sustained her burden of showing that the ALJ‘s reliance on the vocational expert‘s testimony concerning classifying Plaintiff‘s past relevant work and the skills she obtained from this work constitutes reversible error. On remand, the Court will require the ALJ to reconsider Plaintiff‘s past relevant work and any other work in the national economy that Plaintiff may be able to perform.
B. Whether the ALJ‘s finding that Plaintiff‘s medically determinable migraine headaches are non-severe is contrary to law and not supported by substantial evidence
Plaintiff argues that the ALJ erred at step two of the analysis when finding Plaintiff‘s migraine headaches non-severe and this error caused further errors in the subsequent steps of the sequential evaluation. (Doc. 22, p. 22-23). Specifically, Plaintiff claims that the ALJ erred in not including any limitations in the RFC based on Plaintiff‘s migraine headache impairment. (Doc. 22, p. 22-26). The
At step two, an ALJ considers the severity of a claimant‘s impairments.
The severity of an impairment “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). The impairment must also last or be expected to last for a continuous period of at least 12 months.
With this standard in mind, even if the ALJ should have characterized Plaintiff‘s migraine headaches as a severe impairment, any error is harmless because the ALJ characterized other impairments – myasthenia gravis, lumbar disc disease, lumbar spondylosis, type 2 diabetes mellitus, obesity, osteoarthritis bilateral hips, traumatic degenerative joint disease, bilateral trochanteric bursitis, iliac enthesopathy, heterotopic ossification, diabetic neuropathy, psoriatic arthritis, and chronic obstructive pulmonary disease/asthma as severe. (Tr. 13). The ALJ then advanced to step three of the sequential evaluation. See Ball, 714 F. App‘x at 993.
To reach the conclusion that Plaintiff could return to her past relevant work as a case manager or to other work in the national economy, the ALJ was required to consider all the duties of that work and evaluate Plaintiff‘s ability to perform these jobs despite her impairments. Schink v. Comm‘r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019). “Consideration of all impairments, severe and non-severe, is required when assessing a claimant‘s RFC.” Id. In other words, an ALJ must consider a claimant‘s medical condition as a whole. Id. (citing Mitchell v. Comm‘r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014)).
After determining the RFC, the ALJ stated that she “has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” (Tr. 26). Even though the ALJ made this statement, the Court must consider whether within the RFC section, the ALJ actually discussed all of Plaintiff‘s alleged impairments singly and in combination, whether severe or non-severe. See Schink, 935 F.3d at 1269. Although the ALJ stated she considered all symptoms, the section following the RFC
Normally, this error would warrant reversal. Here, however, in the step two analysis to determine whether migraine headaches were a severe impairment, the ALJ specifically discussed RFC limitations as to migraines. The ALJ found that based on the overlap with Plaintiff‘s severe myasthenia gravis and non-severe migraines, the ALJ limited Plaintiff to jobs requiring frequent near and far acuity, “out of caution. These non[-]severe visual impairments do not support a need for time off task, but the undersigned notes that the vocational expert testified that 10 percent of time off task would not preclude the jobs discussed below.” (Tr. 19). Thus, the ALJ clearly considered Plaintiff‘s migraine headaches and any limitations in Plaintiff‘s ability to work that they would cause. As a result, the ALJ limited Plaintiff to frequent near and far acuity and no additional limitations for being off task.
While the ALJ may have erred in including this discussion at step two rather than in the RFC determination, the Court finds this error is harmless because the ALJ specifically considered any limitations based on migraine headaches and included such a limitation in the RFC. Nonetheless, because the Court is remanding
C. Whether the ALJ‘s credibility analysis is generally flawed as a result of the above error, and specifically so because it fails to acknowledge or discuss Plaintiff‘s excellent work history.
Plaintiff argues the ALJ erred in not acknowledging or discussing Plaintiff‘s strong work history to support her subjective complaints. (Doc. 22, p. 31). Plaintiff claims that she worked over 39 years prior to her alleged onset date and the ALJ should have considered it in the subjective complaint analysis. (Do. 22, p. 31-32). The Commissioner contends substantial evidence supports the ALJ‘s subjective complaint findings. (Doc. 22, p. 33-36).
A claimant may establish that she is disabled through her own testimony of pain or other subjective symptoms. Ross v. Comm‘r of Soc. Sec., 794 F. App‘x 858, 867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.”
Id. (quoting Dyer, 395 F.3d at 1210). When evaluating a claimant‘s testimony, the ALJ should consider: (1) the claimant‘s daily activities; (2) the location, duration, frequency, and intensity of the claimant‘s pain or other symptoms; (3) precipitating
Plaintiff only claims error in the ALJ failing to discuss Plaintiff‘s excellent past work history. While prior work history is a consideration in evaluating a claimant‘s subjective complaints, the Eleventh Circuit has not had an occasion to
In this case, at the hearing, the ALJ stated that he considered and reviewed Exhibit 3E, which sets forth Plaintiff‘s past relevant work from April 2003 through July 2016. (Tr. 62, 259). And in the decision, the ALJ stated that Plaintiff “has past relevant work as a case manager, which she performed within the past 15 years, at substantial gainful activity levels.” (Tr. 31). The ALJ also references Exhibit 5E, which sets forth Plaintiff‘s work history from 1990 through 2016. (Tr. 31, 270-76). The Court finds that although the ALJ may have not expressly discussed Plaintiff‘s work history in assessing Plaintiff‘s subjective symptoms, the ALJ did review Plaintiff‘s work history. Thus, the Court finds no error.
III. Conclusion
The decision of the Commissioner is REVERSED, and this action is REMANDED pursuant to sentence four of
DONE and ORDERED in Fort Myers, Florida on October 28, 2021.
DOUGLAS N. FRAZIER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record Unrepresented Parties