FUCHS

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of his claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1980, has some high school education, and has past relevant work experience as a carpenter’s helper, restaurant cook, contracting specialist, salesclerk, and food tester. (R. 23, 116). The Plaintiff applied for DIB and SSI in March 2016, alleging disability as of October 2015, due to epilepsy, anxiety,

At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a hearing on the matter in October 2018. (R. 88–122, 212). The Plaintiff was represented by counsel at that hearing and testified on his own behalf. (R. 88–114). A vocational expert (VE) also testified.2 (R. 115-122). In April 2019, the ALJ issued a decision in which she found that the Plaintiff:

(1) met the insured status requirements through the end of December 2019, and had not engaged in substantial gainful activity since his alleged onset date in October 2015;
(2) had the severe impairment of epilepsy; (3) did not, however, have an impairment or combination of impairments that met or medically equaled the severity of any of the listed impairments; (4) had the residual functional capacity (RFC) to engage in a full range of work at all exertional levels subject to certain nonexertional limitations; and (5) based on the VE’s testimony, could not engage in his past relevant work but was capable making a successful adjustment to other jobs that exist in significant numbers in the national economy. (R. 11–24). In light of these findings, the ALJ concluded that the Plaintiff was not disabled. (R. 24).

The Appeals Council denied the Plaintiff’s request for review. (R. 1–3). Accordingly, the ALJ’s decision became the final decision of the Commissioner. 2 “A [VE] is an expert on the kinds of jobs an individual can perform based on [the claimant’s] capacity and impairments.” Phillips v. Barnhart, 357 F. 3d 1232, 1240 (11th Cir. 2004).

II.

The Social Security Act (the Act) defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).³ A physical or mental impairment under the Act “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). To determine whether a claimant is disabled, the Social Security Regulations (Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R. § 404.1520(a)(4)).4 Under this process, an ALJ must assess whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix¹; (4) has the RFC to engage in his past relevant work; and (5) can perform other jobs in the national economy given his RFC, age, education, and work experience. Id. (citing Phillips v. Barnhart, 357 F. 3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). Although the claimant has the burden of

Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994)).

III.

The Plaintiff’s sole challenge on appeal is that the ALJ’s decision is not supported by substantial evidence because the ALJ’s RFC determination did not account for limitations caused by the Plaintiff’s epilepsy. (Doc. 21 at 6–8). The Commissioner counters that the ALJ properly applied the governing law and that her decision is adequately buttressed by the evidence of record. Id. at 8–12. For the reasons set forth below, the Plaintiff’s challenge is without merit. As noted above, at step four of the sequential evaluation process, the ALJ must assess the claimant’s RFC, as well as his ability to perform his past relevant work. See 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945. In making this determination, an ALJ must decide based upon all the relevant evidence what a claimant can do in a work setting despite any physical or mental limitations caused by the claimant’s impairments and related symptoms. Id.

At step five, the ALJ must then consider the claimant’s RFC in combination with his age, education, and work experience and assess whether he can make an adjustment to other work. Phillips, 357 F. 3d at 1239. If the claimant can make such an adjustment, a finding of no disability is warranted. Id. Here, the ALJ found at step four that the Plaintiff had the RFC to engage in a full range of work at all exertional levels but was restricted to, among other things, simple and routine tasks. (R. 17–22). At step five, the ALJ determined that the

Plaintiff had the RFC to engage in unskilled work but recognized that the Plaintiff’s non-exertional limitations could “erode the occupational base of unskilled work at all exertional levels” available to him. (R. 22–23). As a result, the ALJ inquired of the VE regarding the extent to which such restrictions precluded the Plaintiff from performing other jobs that exist in the national economy in light of the Plaintiff’s age,

education, work experience, and RFC. (R. 23). The VE responded that, given all the factors, as well as VE’s experience with seizure disorders, the Plaintiff would be able to engage in unskilled jobs with an SVP⁵ of two, such as patient transporter, hand packager, and marker. Id. Based on this testimony, the ALJ found that the Plaintiff was not disabled. Id.

The Plaintiff now argues that the ALJ’s disability assessment is fatally flawed because the ALJ’s step four and step five findings did not include limitations for the Plaintiff’s deficits in processing speed, pace, or memory stemming from his epilepsy, and also did not include limitations addressing any time off from work he required

related impairments that allegedly attend his epilepsy. Although he summarizes some portions of the record relating to these issues—namely, certain opinion evidence, his own testimony, and various treatment notes describing his history of seizures—he does not meaningfully argue or present facts demonstrating how his reduced abilities resulted in functional restrictions not included in the ALJ’s RFC determination. See

20 C.F.R. §§ 404.1520, 416.920; see also Smith v. Comm’r of Soc. Sec., 501 F. App’x 875, 877–78 (11th Cir. 2012) (noting that a claimant bears the burden of showing “the effect of [an] impairment on [his] ability to work”) (quoting McCruter v. Bowen, 791 F. 2d 1544, 1546–47 (11th Cir. 1986)). A claimant cannot establish that an ALJ has committed reversible error simply by arguing the ALJ neglected to consider limitations caused by the claimant’s afflictions when the claimant himself does not explain how those afflictions inhibit his ability to engage in basic work activities. Smith, 501 F. App’x at 877–78. Irrespective of this deficiency, it is evident from the ALJ’s decision that she properly considered the Plaintiff’s restrictions pertaining to his processing speed, memory issues, and time off task in arriving at her RFC findings and that those RFC findings are supported by substantial evidence. In connection with record evidence that the Plaintiff suffered from certain mental impairments, the ALJ determined at step two that the Plaintiff had only mild limitations in the functional areas of “understanding, remembering, or applying information,” as well as in “concentration, persistence, and pace.”⁶ (R. 16–17). The phrase “concentration, persistence, and pace” in this context refers to a claimant’s “ability to sustain focused attention and concentration sufficiently long enough to permit him to timely and appropriately complete tasks that are commonly found in work settings.” Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950 (11th Cir. 2013) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(C)(3)). Similarly, at step four, the ALJ assigned great weight to the reports of two state agency consultants, both of whom also opined that the Plaintiff exhibited only mild limitations in maintaining concentration, persistence, and pace. (R. 21). And the ALJ thereafter incorporated her findings regarding the Plaintiff’s mild impairments in these functional areas into her RFC determination by confining the Plaintiff to simple and routine tasks, which the ALJ equated to unskilled work. (R. 17, 23); 20 C.F.R. § 404.1568(a) (defining unskilled work as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time”); id. at § 416.968(a) (same). These findings by the ALJ—none of which the Plaintiff appears to contest—are important because the Eleventh Circuit has held (albeit in unpublished decisions) that

IV.

For the foregoing reasons, it is hereby ORDERED: 1. The Commissioner’s decision is affirmed.

2. The Clerk is directed to enter Judgment in the Defendant’s favor and to close the case. SO ORDERED in Tampa, Florida, this 30th day of August 2021.

Ohare ay Pp

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge Copies to: Counsel of record