MORENO TIPPENHAVER

v.

COMMISSIONER OF SOCIAL SECURITY

THIS MATTER came before the Court upon Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) [DE 27] and Defendant’s Motion for Summary Judgment (“Defendant’s Motion”) [DE 30]. The Court has reviewed both motions, all summary judgment materials, and the record in this case. For the reasons discussed herein, Plaintiff’s Motion [DE 27] will be DENIED and Defendant’s Motion [DE 30] will be GRANTED.

BACKGROUND

I.

PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits and supplemental security income on August 22, 2019, alleging a disability onset date of July¹, 2018 (“Alleged Onset Date”). Tr. 10, 84, 101, 118, 135, 258-68. Her claims were denied initially and upon reconsideration. Tr. 10, 84, 101, 118, 135. Thereafter, Plaintiff appeared with counsel at a hearing before an Administrative Law Judge (“ALJ”) on August 27, 2020; a vocational expert (“VE”) also appeared and provided testimony at the hearing. Tr. 65-83.

On September 9, 2020, the ALJ issued his decision, finding that Plaintiff was not disabled under the Social Security Act. Tr. 10-21.

On October¹⁶, 2020, the Appeals Council denied Plaintiff’s request for review, thereby leaving the ALJ’s decision as the final decision of the Commissioner. Tr. 1-3.

Consequently, on December 11, 2020, Plaintiff filed this action seeking judicial review of the Commissioner’s decision.

II. PLAINTIFF’S BACKGROUND & HEARING TESTIMONY

Plaintiff was born in 1963. Tr.

258. She was 56 years old at the time she filed her claims and 57 years old both at the time of her hearing before the ALJ and on the date the ALJ issued his decision. Plaintiff completed 11th grade but did not complete high school or obtain a GED. Tr.

70. In her disability report, Plaintiff alleged that the following medical conditions limited her ability to work: high blood pressure; diabetes; back problem; hip problem; anxiety disorder; depression; vision problems; headaches; insomnia; and hand/wrist/arm problem. Tr.

279. Before Plaintiff ceased working in 2018, she worked for a security company, opening and closing gates, monitoring security and cameras, and roving (patrol). Tr. 70-71. Plaintiff was laid off from that job and testified that she was unable to return to work (apparently her former employer was subsequently in a position to hire or re-hire employees) because she started getting sick and experiencing pains throughout various parts of her body. Tr. 72-73. Plaintiff explained that she cannot lift anything because her shoulders will hurt and that she cannot even twist a bottle. Tr.

75.

The VE testified after Plaintiff. He classified Plaintiff’s past relevant work as two positions: (1) security guard/merchant patroller (DOT # 372.667-038); and (2) gate guard (DOT # 372.667-030). Tr.

79. The ALJ then asked the VE whether Plaintiff could perform her past relevant work if subject to certain limitations – the limitations identified in the ALJ’s question were consistent with the limitations the ALJ ultimately adopted in Plaintiff’s RFC (which is discussed below). Compare Tr. 15 with Tr.

80. With such limitations, the VE testified Plaintiff could perform both jobs, both as actually performed and as customarily performed. Tr.

80.

STANDARD OF REVIEW

In reviewing claims brought under the Social Security Act, a court’s role is limited. Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s findings of fact must be affirmed if they are based upon “substantial evidence.” See 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389, 401 (1971); Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is . . . such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Moore, 405 F. 3d at 1211 (citing Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th Cir. 2004)).

It “is something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005) (citation omitted). “If the Commissioner’s decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Id. (quoting Phillips v. Barnhart, 357 F. 3d 1232, 1240 n.8 (11th Cir. 2004)).

Courts “may not decide the facts anew, reweigh the evidence, or substitute [their] judgment for that of the [Commissioner].” Id. (quoting Phillips, 357 F. 3d at 1240 n.8); Bloodsworth, 703 F. 2d at 1239. In addition to determining whether the Commissioner’s factual findings are supported by substantial evidence, courts must determine whether the ALJ applied the correct legal standards. Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002).

DISCUSSION

I. THE SEQUENTIAL EVALUATION

A “disability” is defined as an 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

In making a disability determination, “the ALJ must consider the evidence in its entirety, including: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant . . . and (4) the claimant’s age, education, and work history.” Maffia v. Comm’r of Soc. Sec., 291 F. App’x 261, 262-63 (11th Cir. 2008) (quoting DePaepe v. Richardson, 464 F. 2d 92, 94 (5th Cir.1972)).

See also Walden v. Schweiker, 672 F. 2d 835, 839 (11th Cir. 1982).

To arrive at a determination as to disability, the ALJ must undertake the sequential evaluation embodied in 20 C.F.R. §§ 404.1520 and 416.920. This process requires that the ALJ first determine whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b).

If so, a finding of “no disability” is made. If the claimant is not engaged in such work, then the ALJ must proceed to the second step and determine whether the claimant suffers from a “severe impairment.” An impairment is severe if it significantly limits the claimant’s physical or mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).

If no severe impairment is found, then the ALJ will conclude that there is no disability; if a severe impairment is found, then the ALJ will proceed to the next step of the analysis. See 20 C.F.R. §§ 404.1520(c), 416.920(c).

The third step requires the ALJ to determine whether the claimant’s impairment meets or equals those listed in Appendix¹ of the Regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d).

If so, the ALJ will find the claimant disabled without considering age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d).

If not, the inquiry will proceed to the next stage. Step four requires the ALJ to determine whether the claimant has the residual functional capacity (“RFC”) to perform past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e).

The Regulations define RFC as “the most you can still do despite your limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

This determination takes into account “all of the relevant medical and other evidence,” including the claimant’s own testimony and the observations of others. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).

The ALJ must then compare the RFC with the physical and mental demands of the claimant’s past relevant work to determine whether the claimant is still capable of performing that kind of work. If so, the claimant is found not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).

If the claimant establishes an inability to return to past relevant work, the inquiry turns to step five. “At step five the burden of going forward shifts to the [Commissioner] ‘to show the existence of other jobs in the national economy which, given the claimant’s impairments, the claimant can perform.’” Washington v. Comm’r of Soc. Sec., 906 F. 3d 1353, 1359 (11th Cir. 2018) (quoting Hale v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)).

If the Commissioner points to possible alternative employment, then the burden returns to the claimant to prove an inability to perform those jobs. Id. At this fifth and final step, the ALJ must resolve whether the claimant is actually capable of performing other work. See 20 C.F.R. §§ 404.1520(g), 404.1560(c),

416.920(g), 416.960(c). To help evaluate whether sufficient jobs exist that can be performed given the claimant’s age, education, and physical limitations, the Commissioner has promulgated Medical Vocational Guidelines. See 20 C.F.R. § 404, subpt. P, app.

2. The guidelines may apply “where a person is not doing substantial gainful activity and is prevented by a severe medically determinable impairment from doing vocationally relevant past work.” 20 C.F.R. §§ 404.1569, 416.969. The guidelines are composed of detailed grids and rules, which direct a finding of disabled or not disabled based on a claimant’s RFC, age, education, and previous work experience. Walker v. Bowen, 826 F. 2d 996, 1002 (11th Cir. 1987). Yet, the guidelines “do not cover all possible variations of factors” and are inapplicable “if one of the findings of fact about the person’s vocational factors and [RFC] is not the same as the corresponding criterion of a rule.” 20 C.F.R. §§ 404.1569, 416.969.

Therefore, “[e]xclusive reliance on the grids is not appropriate either when [the] claimant is unable to perform a full range of work at a given residual functional level or when a claimant has non-exertional impairments that significantly limit basic work skills.” Phillips, 357 F. 3d at 1242 (citation omitted). See also Walker, 826 F. 2d at 1002-03; Hargis v. Sullivan, 945 F. 2d 1482, 1490 (10th Cir. 1991).

Nevertheless, in such situations, the guidelines may serve as a framework to determine whether sufficient jobs exist within a claimant’s range of RFC. Hargis, 945 F. 2d at 1490.

However, the Commissioner may carry his or her burden through the use of a VE when exclusive reliance on the guidelines is not appropriate. Chaney-Everett v. Astrue, 839 F. Supp. 2d 1291, 1299 (S.D. Fla. 2012) (citing Walker v. Bowen, 889 F. 2d 47, 50 (4th Cir. 1989); Walker, 826 F. 2d at 1003). A VE provides the ALJ with a realistic appraisal of the work that a claimant is capable of performing. Id. (citing Walker, 889 F. 2d at 50).

II. ALJ’S APPLICATION OF THE SEQUENTIAL EVALUATION After considering the evidence, the ALJ found that Plaintiff was not disabled. Tr.

21.

Initially, the ALJ addressed some preliminary issues and outlined in detail the five steps of the sequential evaluation. Tr. 10-12. Then, addressing the first step in the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the Alleged Onset Date. Tr.

12. Next, the ALJ found that Plaintiff had the severe impairments of obesity, spine disorders, essential hypertension, and diabetes mellitus. Tr.

12. He also determined that Plaintiff’s mental impairments – depressive, bipolar and related disorder – were not severe impairments. Tr.

13. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr.

14.

The ALJ next assessed Plaintiff’s RFC, determining, “[a]fter careful consideration of the entire record,” that Plaintiff had the RFC

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except occasionally climb ropes, ladders or scaffolds; frequently climb ramps and stairs; frequently kneeling and crawling; avoid concentrated exposure to noise and hazards including working in high exposed places and proximity to moving vehicles and mechanical parts.

Tr.

15. According to the ALJ, “[t]he medical evidence of record is void of objective evidence to support a more restrictive residual functional capacity.” Tr.

19. After determining Plaintiff’s RFC, the ALJ found that Plaintiff is capable of performing her past relevant work as a security guard/merchant patroller and gate guard (both as actually performed and as generally performed). Tr. 20-21.

In light of the ALJ’s finding that Plaintiff could perform her past relevant work, the ALJ concluded that Plaintiff was not disabled – from the Alleged Onset Date through the date of the ALJ’s decision. Tr.

21.

III.

ANALYSIS

In her Motion, Plaintiff argues that “[t]he ALJ’s step two determination is not supported by substantial evidence because [the ALJ] failed to find Plaintiff’s shoulder impairment severe and this failure permeated the remainder of [the ALJ’s] analysis.” Motion at 7. As discussed herein, Plaintiff has failed to show that remand is warranted. At step two, an ALJ must “consider the medical severity of [the claimant’s] impairment(s).” Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1264-65 (11th Cir. 2019) (citation omitted) (alteration in original).

This step, however, is only a “threshold inquiry.” Id. at 1265 (quoting McDaniel v. Bowen, 800 F. 2d 1026, 1031 (11th Cir. 1986)). “[O]nly claims based on the most trivial impairments [may] be rejected” at step two. Id. (quoting McDaniel, 800 F. 2d at 1031).

Step two simply “‘acts as a filter’ to weed out claims where there are no severe impairments at all.” Bullard v. Comm’r, Soc. Sec. Admin., 752 F. App’x 753, 755 (11th Cir. 2018) (quoting and citing Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987)). “To show a ‘severe’ impairment,

a claimant must show ‘any impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities.’” Id. (quoting 20 C.F.R. § 404.1520(c)). “An impairment or combination of impairments is not severe if it does not significantly limit [her] physical or mental ability to do basic work activities.” Schink, 935 F. 3d at 1265 (quoting 20 C.F.R. § 404.1522(a)). While a claimant has the burden to establish a severe impairment at step two, it is only a “mild” burden. Id. The ALJ did not err at step two. As noted above, at step two, the ALJ found Plaintiff to have several severe impairments – obesity, spine disorders, essential hypertension, and diabetes mellitus. Tr.

12. He also found Plaintiff’s mental impairments to be non-severe. Tr.