MAZZAFERRO

v.

SAUL

THIS MATTER came before the Court upon Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) [DE 14] and Defendant’s Motion for Summary Judgment (“Defendant’s Motion”) [DE 19]. The Court has reviewed the Motions, all summary judgment materials, and the record in this case. For the reasons discussed herein, Plaintiff’s Motion [DE 14] will be DENIED and Defendant’s Motion [DE 19] will be GRANTED.

BACKGROUND

I.

PROCEDURAL HISTORY

Plaintiff applied for Disability Insurance Benefits on March 10, 2017, alleging disability as of December 12, 2015 (“Alleged Onset Date”). Tr.

15. The application was denied initially and upon reconsideration. Tr. 96-106. Thereafter, Plaintiff appeared with counsel at a hearing before an Administrative Law Judge (“ALJ”) on January 14, 2019; Ms. Chapman, a vocational expert (“VE”), and Dr. Greenberg, a medical expert (“ME”),¹ also appeared and testified. Tr. 30-

Commissioner. Tr. 1-5. Consequently, on December 23, 2019, Plaintiff filed this action seeking judicial review of the Commissioner’s decision.

II. FACTS

A. Plaintiff’s Background Plaintiff was fifty-three (53) years old on the Alleged Onset Date and was fifty-six (56) years old at the time of the hearing before the ALJ (and on the date that the ALJ issued his decision). See Tr. 20. Plaintiff has at least a high school education and can communicate in English. Tr. 20. The VE testified that Plaintiff performed past relevant work as a vice president of a financial institution. Tr. 20, 45.

B. Medical Evidence

In 2012, Plaintiff underwent surgery to remove a meningioma in the occipital region of the brain. Tr.

277. The majority of the tumor was resected. Tr.

277.

However, following a March 2014 examination at the Kendall Eye Institute, Dr. Hamburger reviewed Plaintiff’s MRI scan and observed the presence of what could represent scarring or residual tumor. In addition, Dr. Hamburger stated that: Computerized fields showed complete loss of the inferior temporal portion of the left visual field due to the surgery and tumor. The right visual field was normal. I compared the field loss in the left eye from testing by Dr. Woods in May and September 2013, and there was definitely more loss in the left eye today. There was some mild left inferior loss in the right eye field done by Dr. Woods, that has returned to normal when tested today.

Tr. 278. Plaintiff also attended an appointment with Dr. Hamburger in November 2014. Dr. Hamburger’s notes and comments regarding that appointment were substantially similar; though, he also noted that review of a new MRI did not show any significant tumor regrowth. Tr. 281. Various examinations prior to and following the aforementioned appointments revealed visual acuities of 20/20 and 20/25. Tr. 284-92. The medical evidence is discussed at length in the ALJ’s decision.² Tr. 18-20. In addition to the non-testimonial medical evidence, the ALJ also considered live testimony from the ME, which is discussed in the next section.

C. Hearing Testimony

1. ME’s Testimony (Tr. 31-40) The ME who testified (Dr. Greenberg) is an ophthalmologist. Tr.

32. He testified that

Plaintiff’s diagnosis “is bilateral homonymous hemianopsia meaning there is a loss of visual field in each eye on the same side in this case, the left side, lower left side . . . [d]ue to meningioma of the right occipital lobe of the brain, which was resected.” Tr.

32. The ALJ asked the ME to discuss the practical limitations Plaintiff may have (such as limitations related to reading, writing, and driving). Tr. 33. The ME testified “there might be a problem driving.” Tr. 33. He explained that Plaintiff would not have any problem driving straight ahead, but that he may have a problem when a vehicle comes from the left. Tr. 33. Nevertheless, the ME did not believe the issue to be severe enough that it would prevent Plaintiff from obtaining a license. Tr. 33. As to reading, the ME testified that Plaintiff is able to read when looking directly at text because Plaintiff’s vision corrects to 20/20 or 20/25. Tr. 33. Plaintiff can even see small font and text. Tr. 33. However, the ME testified that Plaintiff’s condition may limit his ability to scan,

Tr.

37. Also, notwithstanding the severity of Plaintiff’s visual defect, the ME testified that the defect is less severe because it is on the left side (as opposed to the right side). Tr. 37-38.

Thus, aside from some potential slowing down, the ME stated that he did not see a problem reading from left to right. Tr.

40.

In addition to the potential issues with driving and reading, the ME testified that Plaintiff should avoid doing a job that involves heights or moving or dangerous machinery. Tr.

34. Also,

when asked about Plaintiff’s alleged symptom of feeling a state of disequilibrium, the ME testified that the described symptom (which the ME did not precisely consider to be a loss of equilibrium as described) could potentially result “to a certain extent,” and noted that the described symptom would cause a problem if doing the kind of work where there is an obstacle laden floor. Tr. 35-

36, 38-39. Even though there would be no issue with seeing things straight ahead because Plaintiff’s central vision is fine in both eyes, Plaintiff may have an issue seeing items 10 to 20 degrees away from central vision on the left. Tr. 36-37. Near the conclusion of the ME’s testimony, the ALJ asked the VE whether she needed any clarification from the ME; the VE stated that she did not require any clarification. Tr. 38.

2. Plaintiff’s Testimony (Tr. 41-44) Plaintiff testified that in addition to his visual problems, he sometimes feels a sense of disorientation – akin to being lightheaded. Tr. 41-42. He also stated that he cannot scroll on a computer screen because it makes him nauseous. Tr.

41.

However, the majority of Plaintiff’s testimony was centered around trying to explain his alleged disorientation. Tr. 41-43.

3. VE’s Testimony (Tr. 45-49) After testifying that Plaintiff has prior work experience as a vice president of a financial institution, the VE answered certain hypothetical questions posed by the ALJ. Tr. 45-47.

First, the ALJ asked the VE whether an individual with Plaintiff’s age, education, and vocational background, “who has the limitations set forth by [the ME]” – “specifically there’s no gross physical limitations of any kind. It’s only visual here . . . he may have difficulty driving and lowered ability to read. Okay. No heights, no machinery.” – is able to perform Plaintiff’s past relevant work. Tr.

45. The VE said such a question is difficult to answer. Tr.

45.

However, when the ALJ asked the VE whether the same person with the same limitations can perform any other jobs in the national economy, the VE testified that such a person could complete work as a teller (which is less demanding than Plaintiff’s past relevant work), as a cashier, or doing unskilled work (like laundry). Tr. 46.

The ALJ then specifically asked the VE, “assume that we have an individual same age, education, and vocational background who has limited ability to drive, limited ability to read, no heights, no dangerous machinery. Would such an individual be able to find work in the national economy and if so, what jobs would there be?” Tr. 47. The VE provided examples of unskilled work that such a person could perform, such as the job of sandwich maker (115,000 jobs), hand packager (53,400 jobs), and laundry worker (69,500 jobs). Tr. 47.3 During cross-examination,

49.

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 foregoing limitation alleged by Plaintiff, and Plaintiff does not specifically claim that the ALJ erred by failing to include the foregoing alleged limitation in his RFC. 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. 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).

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).

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 id. 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).

If so, the ALJ will find the claimant disabled without considering age, education, and work experience. Id. 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).

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

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).

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).

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. 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.

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, although Plaintiff is unable to perform any past relevant work, he is able to perform other jobs that exist in significant numbers in the national economy. Tr. 20-21.

Therefore, the ALJ concluded that Plaintiff was not disabled at any time between the Alleged Onset Date and the date of the ALJ’s decision. Tr.

21.

Preliminarily, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2019. Tr.

17.

Accordingly, as the ALJ noted, Plaintiff was required to “establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits.” Tr.

15. See also Moore, 405 F. 3d at 1211 (“For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005). Because Moore’s last insured date was December 31, 1997, her DIB appeal requires a showing of disability on or before that date.”). Given that Plaintiff met the insured status requirements through, and following, the date of the hearing, the insured status requirement presented no obstacle.

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.

17. Next, the ALJ found that Plaintiff had the severe impairment of loss of left side – lower visual field. Tr.

17.

However, the ALJ then 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.

17.

Next, the ALJ assessed Plaintiff’s RFC. As part of this assessment, the ALJ considered all of the evidence, including Plaintiff’s symptoms and the extent to which his symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence. He also considered opinion evidence. Tr. 18-20.

With respect to Plaintiff’s subjective complaints, the ALJ discounted them, finding that while Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” Plaintiff’s claims regarding the intensity, persistence and limiting effects of his symptoms were inconsistent with other record evidence. Tr. 18-19. In doing so, the ALJ discussed the testimony of the ME, an impartial medical expert who reviewed the entire medical record, the results of examinations of Plaintiff by Dr. Hamburger and other doctors, and opinion evidence from a state agency medical consultant who completed an assessment in June 2017 based on Plaintiff’s November 2015 and November 2016 eye examinations. Tr. 19-20. The ALJ found the ME’s conclusions and opinions to be “reasonable and convincing.” Tr.

19. Ultimately, based on the ALJ’s consideration of all of the evidence, he found that Plaintiff had the RFC “to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant is limited in driving. He has some difficulty reading. He cannot be exposed [to] heights and hazards.” Tr. 18.

After assessing Plaintiff’s RFC, the ALJ considered whether Plaintiff had the ability to perform his past relevant work as a vice president of a financial institution. Tr.

20. The ALJ concluded, based in part on testimony from the VE, that Plaintiff was not able to perform his past relevant work. Tr.

20.

Given that Plaintiff could not perform his past relevant work, the ALJ considered Plaintiff’s age, education, work experience, and RFC, in conjunction with the Medical-Vocational Guidelines, to determine whether a significant number of jobs, that Plaintiff could perform, existed in the national economy. Tr. 20-21. The ALJ noted that Plaintiff was 53 years old on the Alleged Onset Date, which is defined as an individual closely approaching advanced age under 20 C.F.R. § 404.1563. Tr.

20. He also noted that Plaintiff had at least a high school education and that he is able to communicate in English. Tr.

20. The ALJ relied on testimony from the VE to determine whether jobs existed in the national economy for an individual with Plaintiff’s age, education, work experience, and RFC. Tr.

21. As mentioned above, the VE identified the occupations of sandwich maker, hand packager, and laundry worker. Tr. 21, 47. The ALJ found that the VE’s testimony was consistent with the Dictionary of Occupational Titles. Tr.

21. Based on the VE’s testimony, the ALJ concluded that considering Plaintiff’s “age, education, work experience, and [RFC], [Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Tr.