The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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The Magistrate Judge considered only one issue on appeal: Whether the ALJ erred by failing to acknowledge or discuss the 'borderline age situation' in the case. (Doc. #26, p. 5.) The Magistrate Judge noted that an ALJ may not exclusively rely on grids when a claimant is unable to perform a full range of work, of if limited basic work skills. The Magistrate Judge considered a two-part test noting that plaintiff was within a few days or a few months of a higher age category as she was 54 years, 6 months, and 12 days old at the date of the decision. Applying the same factors under Grid Rule 202.11 to one of 'advanced age', the Magistrate Judge found that this would mandate a finding of disabled. Because the ALJ failed to acknowledge the borderline age issue, the Magistrate Judge found reversible error. The Magistrate Judge acknowledged that the Eleventh Circuit has not decided whether the ALJ has a responsibility to identify borderline age situation, but the Magistrate Judge was more persuaded by cases assigning responsibility. Being unpersuaded by the other arguments, the Magistrate Judge found remand to be heard on the issue was appropriate.
If the claimant had the [RFC] to perform the full range of light work, considering the claimant's age, education, and work experience, a finding of "not disabled" would be directed by Medical-Vocational Rule 202.11. However, the additional limitations have little to no effect on the occupational base of unskilled light work. A finding of "not disabled" is therefore appropriate under the framework of this rule.
Claimant also failed to show the DOE and the Social Security standards are similar enough to make the DOE evaluation relevant to the ALJ's decision. The DOE letter suggested Bear would need to earn a GED before becoming employable. See Fla. Admin. Code Ann. r. 6A-25.005 (4)(a) (requiring DOE to address applicant's barriers to employment). T. 230. In contrast, the Social Security rule utilized for disability determination, Medical-Vocational Rule 202.11, requires only a "[l]imited or less" education level to be deemed employable considering Bear's age and RFC. "Limited or less" is defined by 20 CFR § 404.1564 as a seventh through eleventh grade formal education. In short, unlike the DOE's evaluation, Social Security law does not necessarily require Mr. Bear to obtain a GED to be deemed employable. See Medical-Vocational Rule 202.11. One can glean the asymmetry between the two standards from the differing educational requirements alone, notwithstanding other variables, and claimant failed to show the DOE evaluation is relevant, much less entitled to great weight, in a disability determination under Social Security law. Plaintiff, therefore, has not established the…
RC Home's second argument—that copyright regulations specifically exclude "individual standard features, such as windows, doors, and other staple building components"—conflates the copyrighted technical drawings with the actual sliding glass doors and window wall systems depicted in those drawings. The regulation on which RC Home relies, 37 C.F.R. § 202.11(d)(2), relates to the definition of "architectural work"—the second category of works related to architecture protected by section 102(a)(8) of the Copyright Act. In fact, the statutory definition of "architectural work" contains the same exclusionary language:
Section 90.202(11) “is recognized to be a codification of the common law pre-dating the adoption of Florida's Evidence Code under which ‘Florida courts have taken judicial notice of facts which are “open and notorious”, involve “common notoriety” or are “commonly known”.’ Ehrhardt, Florida Evidence § 202.11, at 51 (footnotes omitted).” Maradie v. Maradie, 680 So.2d 538, 542 (Fla. 1st DCA 1996). Section 90.202, Florida Statutes (2012), provides in relevant part that a court may take judicial notice of:
A. Whether the ALJ applied the correct legal standard when he found Plaintiff not disabled based on Medical-Vocational Rules 202.18 and 202.11 rather than calling a VE to testify.
The Court need not address the other statutory requirements, such as registration, because the parties' Motions raise only the issue of originality. See 17 U.S.C. § 411(a) (“[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”); 37 C.F.R. 202.11(d)(3) (providing that building designs published (or buildings actually constructed) before December 1, 1990 cannot be registered); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (finding that Section 411(a)'s registration requirement is not jurisdictional).
In making the alternative finding here, the ALJ noted that she must consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2 (R. 34). Performing that analysis, the ALJ concluded that, based on a residual functional capacity for the full range of light work, considering the claimant's age, education, and work experience, a finding of "not disabled" is directed by Medical-Vocational Rule 202.18 and Rule 202.11. Id. This conclusion is not a "throw away" comment, but a reasoned analysis, based on the appropriate standards and supported by the findings and law cited. As the step five finding was made in accordance with proper standards and is supported by substantial evidence, the error at step four was harmless.
At step five, the ALJ determined that considering Plaintiff's age (44 as of January 22, 2010, the date of the ALJ's decision; 41 as of March 31, 2007, the last date insured for DIB; 35 as of May 19, 2001, the alleged onset date); education (8th grade and limited); work experience; and RFC; that "there are jobs in that exist in significant numbers in the national economy that the claimant can perform," such as parking booth attendant. R. 20. First, the ALJ determined that under the Medical-Vocational Rules (the Grids) and specifically Rules 202.11 and 202.18 a finding of not disabled is directed based on Plaintiff's RFC for the full range of light work, considering Plaintiff's age, education, and work experience. R. 20.
If the claimant had the residual functional capacity to perform the full range of light work, a finding of 'not disabled' would be directed by Medical-Vocational Rule 202.11. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all these factors the individual would be able to perform the requirements of representative occupations at the light exertional level, SVP 2, such as small parts assembler (DOT 739.687-030 with 998 jobs in the State of Florida and 40, 3339 nationally); lunchroom or coffee shop attendant (DOT 311.477-014 with 8,742 jobs in the State of Florida and 162,800 nationally); and ticket taker (DOT 344.687-010 with 1,008 jobs in the State of Florida and 23,256 nationally).
. . . . § 202.11(d)(2). . . .
. . . . § 202.11(d) (“The following structures, features, or works cannot be registered: ... (2) Standard features . . .
. . . disabled under the applicable sedentary-work rule, 201.10, but pot under the applicable light-work- rule, 202.11 . . .
. . . . § 202.11(d)(2); Zitz v. Pereira, 119 F.Supp.2d 133, 147 (E.D.N.Y. 1999). . . .
. . . . § 202.11(d)(2) ).) . . . The regulation on which RC Home relies, 37 C.F.R. § 202.11(d)(2), relates to the definition of "architectural . . .
. . . . § 202.11(d)(2). . . .
. . . full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.11 . . .
. . . . § 202.11(d)(2); Zitz v. Pereira, 119 F.Supp.2d 133, 147 (E.D.N.Y.1999). . . .
. . . and notorious”, involve “common notoriety" or are "commonly known”,’ Ehrhardt, Florida’Evi- - dence § 202.11 . . . Prac., Florida Evidence, § 202.11 (2015 ed.) . . .
. . . . § 202.11. Purely utilitarian aspects of a work are similarly not protectable. . . . See 37 C.F.R. § 202.11. . . . stating that the stone and stucco fagade was a feature of Sari’s neighbor’s house)); see 37 C.F.R. § 202.11 . . . Windows are. standard features excluded from copyright protection. 37 C.F.R. § 202.11(d) (“The following . . . building components” that may not be registered and are thus not entitled to protection. 37 C.F.R. § 202.11 . . .
. . . . § 202.11(d)(2), as well as “common windows, doors, and other staple building components,” H.R.Rep. . . .
. . . light work, a finding of ‘not disabled’ would be directed by Medical-Vocational Rule 202.18 and Rule 202.11 . . .
. . . P.App. 2 § 202.11 with id. § 202.18. . . .
. . . . § 202.11(d)(3), which “prescribes rules pertaining to the registration of architectural works.” . . . works that were “constructed or otherwise published” from the protections of the AWCPA. 37 C.F.R. § 202.11 . . . The Court of Appeal’s definition of “constructed” in § 202.11(d)(3) should also apply to the definition . . .
. . . .”); 37 C.F.R. 202.11(d)(3) (providing that building designs published (or buildings actually constructed . . .
. . . . § 202.11(d)(2)) [hereinafter Ross II ]. . . . See 37 C.F.R. § 202.11(d)(2); Boss III, 977 F.Supp.2d at 593. . . . See 87 C.F.R. § 202.11(d)(2). . . . Ross III, 977 F.Supp.2d at 593 (citing 37 C.F.R. § 202.11(d)(2)). . Id. (citing H.R.Rep. . . . See Appendix K. . 37 C.F.R. § 202.11(d)(2). . Ross III, 977 F.Supp.2d at 593 (citing H.R.Rep. . . .
. . . , education and work experience, a finding of ‘not disabled’ is directed by Medical-Vocational Rule 202.11 . . .
. . . Part 404, Subpart P, Appendix 2, Rule 202.11. . . .
. . . . § 202.11(d)(2), or design elements that are functionally required, H.R.Rep. . . .
. . . . § 202.11(c)(4). . . .
. . . . § 202.11. . . . reprinted in 1990 U.S.C.C.A.N. 6935, 6949, are explicitly excluded. 17 U.S.C. § 101; see 37 C.F.R. § 202.11 . . .
. . . were Claimant able to perform the full range of light work, Medical-Vocational Rule 202.18 and Rule 202.11 . . . For that reason, the ALJ’s application of Guidelines Rules 202.11 and 202.18 presumes that a significant . . . light of these factors, the ALJ properly determined that “under the framework” of Guidelines Rules 202.11 . . .
. . . Rules 202.11 & 202.12.) . . .
. . . P, App. 2, R. 202.11. . . .
. . . . § 202.11(d)(2). . . .
. . . . § 202.11(c)(3). . . .
. . . Pursuant to Grid Rules 202.10 and 202.11, this compelled a determination that Caudill was not disabled . . .
. . . . § 202.11(b)(2). . . . [and] standard configurations of spaces." 37 C.F.R. § 202.11(d) (emphasis added). . . .
. . . P, App. 2, § 202.11-.12, the finding that Mezzacappa can do light work is not supported by substantial . . .
. . . See Tr. 30 (citing Medical-Vocational Rule 202.11). . . .
. . . . § 202.11(c)(4). . . .
. . . . § 202.11(d)(2)). . . . In support of this new position, Rule Joy cites 37 C.F.R. § 202.11, the section of the Code of Federal . . . Id. § 202.11(b)(2). . . . Id. § 202.11(d)(1). . . . Id. § 202.11(d)(2). . . .
. . . had Plaintiff been able to perform the full range of light work, Medical-Vocational rules 202.10 and 202.11 . . . Defendant further argues that the ALJ properly used Medical-Vocational Rules 202.10 and 202.11 as a framework . . . P, App. 2 §§ 202.09-202.11. . . . The ALJ used Rules 202.10 and 202.11 as a framework for decision making, both of which direct a finding . . . P, App. 2 § 202.11. . Radiculopathy as a "[disorder of the spinal nerve roots.” . . .
. . . . § 202.11(b)(2). . . . Id. § 202.11(d)(1). . . .
. . . . § 202.11(b)(2). . . . Id. § 202.11(d)(1). . . .
. . . arguing the magistrate judge’s finding that the Administrative Law Judge (“ALJ”) improperly applied Rule 202.11 . . . Rule 202.09 directs a finding of “disabled,” whereas Rule 202.11 directs a finding of “not disabled.” . . . Rule 202.11 applies when the individual’s education level is “[l]imited or less.” 20 C.F.R. . . . P, App. 2 § 202.11. Both of these education levels are statutorily defined. . . . P, App. 2, Table 2, § 202.11. . . .
. . . able to do light work and closely approaching advanced age; the plaintiff argues that it should be 202.11 . . .
. . . . § 202.11(c)(4). . . .
. . . . § 202.11(b)(2). . . . Id. at § 202.11(d)(1). . . .
. . . The ALJ applied rule 202.11, which rejects a disability finding for an individual who has the residual . . .
. . . . § 202.11(b)(2). . . . [and] standard configurations of spaces ... ”. 37 C.F.R. § 202.11(d). . . . See, 37 C.F.R. § 202.11(b)(2); Black’s Law Dictionary 194-95 (8th ed.2004) (defining “building” as a . . .
. . . . § 202.11(d)(3)(I). . . . constitute publication for purposes of registration, unless multiple copies are constructed. 37 C.F.R. § 202.11 . . . Furthermore, 37 C.F.R. § 202.11(c)(5) addresses designs of buildings built after December 1, 1990. . . .
. . . Rule 201.10 from the grid applicable to sedentary RFC directs a conclusion of disabled, whereas Rule 202.11 . . . The ALJ applied Rule 202.11 to arrive at his conclusion that Martin was not disabled. . . . limitations do not allow her to perform the full range of light work, using Medical-Vocational Rule 202.11 . . .
. . . . § 202.11(c)(4). . . . . § 202.11(c)(2). It is difficult to square Oravec’s novel theory with the controlling regulations. . . .
. . . Moore et al., Moore’s Federal Practice ¶ 202.11[5] (3d ed. 1997) (“An order denying a motion to remand . . .
. . . . § 202.11(d)(2). . . .
. . . under which a claimant in Mann’s position and limited to sedentary work is disabled; and grid rule 202.11 . . . Accordingly, we must uphold the agency’s decision as proper in its reliance on grid rule 202.11 as a . . .
. . . Lieb, 915 F.2d 180, 185 (5th Cir.1990) (and decisions cited therein); 19 Moore’s Federal Practice § 202.11 . . .
. . . P, App. 2, Sections 202.11 and 202.18 as a framework, the ALJ concluded that the plaintiff was not disabled . . .
. . . Pursuant to Rule 202.11 of Table 2 of the Medical-Vocational Guidelines, a claimant possessing these . . . The administrative law judge therefore determined that Rule 202.11 applied to Johnson, thereby compelling . . . Johnson argues that the administrative law judge should have applied Rule 202.09 instead of Rule 202.11 . . . Because the record demonstrates that Johnson meets all the criteria listed in Rule 202.11, we find no . . .
. . . . § 202.11. . . .
. . . therefore reached within the framework of Medical-Vocational Rule[s] 202.17, 202.18, 202.19, 202.10, 202.11 . . . perform the full range of light work, using Medical-Vocational Rule[s] 202.17, 202.18, 202.19, 202.10, 202.11 . . . the only Grid Rules that are suitable as a framework for decision-making are Rules 202.09, 202.10, 202.11 . . .
. . . See 12 Moore’s §§ 59.32[1], 59.53[1]; 19 Moobe’s § 202.11[1][a], Unfortunately, it is not always clear . . .
. . . . § 202.11(c)(4). . . .
. . . limitations do not allow her to perform the full range of light work, using MedicalYocational Rule 202.11 . . .
. . . P, App. 2, rule 202.11 (the grids) as a framework, the ALJ concluded that appellant was not disabled . . .
. . . The issue is critical because Rule 202.11 of the Medical Vocational Guidelines (the “grids”), 20 C.F.R . . .
. . . to produce evidence that Luna could perform any job categorized as light work, the use of grid rule 202.11 . . .
. . . Section 404.1569 of Regulations No. 4 and section 416.969 of Regulations No. 16 and Rule 202.11, Table . . . summary judgment, plaintiff first argues that the ALJ erred in finding she was not disabled based on Rule 202.11 . . . The ALJ determined, based on Rule 202.11 of the grids, that the plaintiff, being a person closely approaching . . .
. . . Moore et al., Moore’s Federal Practice § 202.11[6], at 202-56 (Matthew Bender 3d ed.) . . .
. . . The ALJ, using the VE’s testimony and Rule 202.11 of the Medical-Vocational Guidelines, determined Williams . . .
. . . that Plaintiff could perform a full range of light work to allow a “not disabled” finding under Rule 202.11 . . .
. . . See Rule 202.11. Finally, Mr. . . .
. . . Moore et al., Moore’s Federal Practice § 202.11[2] [c]. . . .
. . . that he was allowed a sit/stand option and customary breaks and meal periods; and that applying Rule 202.11 . . .
. . . . § 202.00, Rules 202.10 & 202.11, or medium work, see 20 C.F.R. § 203.00, Rule 203.19. . . .
. . . age, educational background, and work experience, Sections 404.1569 and 416.969 and Rules 202.10 and 202.11 . . .
. . . The ALJ’s decision states that “using medical-vocational ‘grid’ rule 202.11, Table 1, Subpart P, Appendix . . .
. . . . § 202.11(d)(3), architectural works that “were constructed or otherwise published before December 1 . . . It is possible to read “constructed” in 37 C.F.R. § 202.11(d)(3) to mean either what the plaintiff or . . . the following reasons, we believe that the better reading of the word “constructed” in 37 C.F.R. § 202.11 . . . works that were “constructed or otherwise published” from the protections of the AWC-PA. 37 C.F.R. § 202.11 . . .
. . . education), and a third set of rules analogous to the rules at issue in Sil-veira’s case (Rules 202.09 and 202.11 . . .
. . . . § 202.11(b)(4) ("Where dual copyright claims exist in technical drawings and the architectural work . . .
. . . Section 202.11 of the Code of Federal Regulations governs the registration of architectural plans and . . . 1990, or the buildings were constructed or otherwise published before December 1,1990. 37 C.F.R. § 202.11 . . . C.F.R. § 202.11(c)(2). . . . See 37 C.F.R. § 202.11(c)(2). (1998). . . . Pursuant to Regulation § 202.11(d), buildings constructed or plans otherwise published before December . . .
. . . Moore et al., Moore’s Federal Practice § 202.11[3] (3d Ed.1998). . . .
. . . . § 202.11(c)(4). . . . respect to the technical drawings and architectural work must be registered separately. 37 C.F.R. § 202.11 . . . constitute publication for purposes of registration unless multiple copies are constructed. 37 C.F.R. § 202.11 . . .
. . . . § 202.11(b)(2) (1997). . . . . § 202.11(d)(1) (1997). . . .
. . . The first ALJ held that Rules 202.11 and 202.12 of the Medical Vocational Guidelines (Grid), 20 C.F.R . . . Rule 202.11 provides that an individual closely approaching advanced age with a limited education and . . .
. . . capacity for light work, and the claimant’s age, education, work experience, section 404.1569 and Rule 202.11 . . .
. . . Ehrhardt, Florida Evidence § 202.11, at 51 (footnotes omitted). See, Makos, 64 So.2d at 673. . . .
. . . . § 404, Subpart P, App. 2, Rules 202.11 & 202.12. . . .
. . . Moreover, the argument that N.C.Gen.Stat. § 14-202.11 is pre-emptive centers almost completely upon the . . . N.C.Gen.Stat. § 14-202.11, “Restrictions as to adult establishments,” reads in pertinent part: No person . . . N.C.Gen.Stat. § 14-202.12 establishes that first-time violations of N.C.Gen.Stat. § 14-202.11 constitute . . . First, if N.C.Gen.Stat. § 14-202.11 can be said to regulate conduct at all (and it clearly does not), . . . This Court shares the Fourth Circuit’s doubts as to the efficacy of N.C.Gen.Stat. § 14-202.11. . . .
. . . Accordingly, taking into consideration Cunningham’s RFC, age, and education, the Secretary applied Rule 202.11 . . .
. . . ALJ concluded that jobs existed in significant numbers in the national economy and pursuant to Rule 202.11 . . .
. . . Pursuant to Rule 202.11 of Appendix 2, the ALJ found plaintiff was not disabled. (Tr. 18-19). IV. . . .
. . . prior work experience, the Grid would still direct a finding of “not disabled” under Rules 202.10 or 202.11 . . . P, App. 2, §§ 202.10; 202.11. . . .
. . . Ehrhardt, Florida Evidence § 202.11, at 51-52 (1994 ed.); see also Forbes v. Bushnell Steel Constr. . . .
. . . Regulation § 202.11(d) provides as follows: (D) Works Excluded. . . . December 1, 1990, to constitute “construction,” thus excluding the structure as provided in 37 C.F.R. § 202.11 . . .
. . . Rule 202.11 in Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, in conjunction with Regulation . . .
. . . If the claimant were limited to no more than the full range of light work, Rule 202.11, Table No. 2 would . . .
. . . work, and the claimant’s age, education, and work experience, section 404.1569 and Rule 202.10 and 202.11 . . .
. . . Section 404.1569 of Regulations No. 4 and Rules 202.10 and 202.11, Table No. 2 of Appendix 2, Subpart . . .
. . . the difference between being disabled under Rules 202.01 or 202.02 or being not disabled under Rules 202.11 . . .
. . . . § 202.11(a)(1), 32 C.F.R. § 297.5(a)(2) and DoD Directive 5400.7-R. . . . enterprise publication will be made available equally to any other publisher who requests it." 32 C.F.R. § 202.11 . . .
. . . On October 5, 1988, the ALJ concluded that Rules 202.10 and 202.11 of the Appendix 2 of the Secretary . . . Under Rules 202.10 and 202.11 of the guidelines, a claimant with Moore’s profile (fifty-three years of . . .
. . . Under rules 202.10 and 202.11 of the guidelines, a claimant with Johnson’s profile (fifty years of age . . . See 20 C.F.R., Part 404, Sub-part P, App. 2, Table No. 2, Rules 202.10 and 202.11. . . .
. . . Appendix 2, Table No. 2, Rule 202.11. (Tr. at 18). . . .
. . . See Rule 202.11. . . .
. . . .-10 and 202.11 of Table No. 2, 20 C.F.R., Appendix 2, to reach the conclusion that Paulson was “not . . . The AU applied Rules 202.10 and 202.11 of Table No. 2, 20 C.F.R., App. 2, to reach the conclusion that . . . the erroneous finding that Paulson could perform “light” work, the AU applied Grid Rules 202.10 and 202.11 . . . Grid Rules 202.10, 202.11, and 202.12 each direct a finding of “not disabled,” irrespective of the level . . .
. . . P, app. 2, Table 1, Rule 201.11, and Table 2, Rules 202.11, 202.12. C. . . . P., app. 2, Table 2, Rules 202.11, 202.12. . . .
. . . Compare 20 C.F.R., Pt. 404, App. 2, §§ 201.10 and 201.14 (1984) with 20 C.F.R., Pt. 404, App. 2, §§ 202.11 . . .
. . . It therefore applied Grid Rules 202.02 and 202.11 of Table No. 2 and concluded that Taylor was not disabled . . .