Betty Mijenes v. Commissioner of Social Securit

Filing

Opinion issued by court as to Appellant Betty Mijenes. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11998

Date Filed: 05/03/2017

Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11998
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-20124-MGC

BETTY MIJENES,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 3, 2017)
Before MARCUS, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:

Case: 16-11998

Date Filed: 05/03/2017

Page: 2 of 16

Claimant Betty Mijenes appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of her application for supplemental
security income. On appeal, Mijenes argues that the ALJ’s residual functional
capacity assessment is not supported by substantial evidence. She also challenges
the ALJ’s determination that she could perform her past relevant work, as well as
the weight the ALJ assigned to the medical opinion evidence. Finally, she asserts
that substantial evidence does not support the ALJ’s credibility determination.
After careful review, we affirm.
I.

BACKGROUND
In 2011, Mijenes filed an application for supplemental security income with

the Social Security Administration. Alleging a disability onset date of July 30,
2010, Mijenes represented that she was disabled and unable to work due to mental
impairments. The Commissioner of Social Security denied Mijenes’s application
for benefits on initial review and upon reconsideration.
At a subsequent hearing before an ALJ, Mijenes testified that her previous
jobs included working in a shipping and receiving factory, selling flowers, and
cleaning houses. She stopped working because she suffers from depression,
bipolar disorder, and panic attacks. She has been hospitalized for depression and
attempting suicide. She stated that she lives with her daughters, who are ages 20

2

Case: 16-11998

Date Filed: 05/03/2017

Page: 3 of 16

and 2, and that her older daughter often does the household chores and takes care
of the younger child.
Following the hearing, the ALJ issued a decision concluding that Mijenes
was not disabled for purposes of supplemental security income. Upon review of
the record evidence, the ALJ determined that Mijenes suffered from depression,
anxiety, and personality disorder, but that these impairments did not meet or equal
any of the listed impairments in the Social Security regulations. The ALJ
explained that Mijenes had mild restrictions in the activities of daily living and
social functioning, moderate difficulties in concentration, persistence, and pace,
and no episodes of decompensation.
The ALJ further determined that Mijenes had the residual functional
capacity to perform the full range of work with some non-exertional limitations. In
fact, her mental capabilities included at the very least: understanding simple
directions; making judgments and simple decisions pertaining to unskilled work;
responding appropriately to supervisors; and adapting to changes in a routine work
environment. Based on that finding, the ALJ concluded that Mijenes could
perform her past relevant work as a housekeeper. Accordingly, the ALJ
determined that Mijenes was not disabled. The Appeals Council denied Mijenes’s
request for review.

3

Case: 16-11998

Date Filed: 05/03/2017

Page: 4 of 16

Mijenes then filed a complaint in district court challenging the denial of
supplemental security income. She argued that substantial evidence did not
support the ALJ’s assessment of her residual functional capacity or the
determination that she could perform her past relevant work. She also challenged
the ALJ’s assessment of the medical opinion evidence and the credibility
determination.
A magistrate judge issued a report and recommendation (“R&R”),
recommending that the denial of supplemental security income be affirmed. Over
Mijenes’s objections, the district court adopted the R&R. This appeal followed.
II.

DISCUSSION
A.

Standard of Review

We review the ALJ’s decision for substantial evidence, but its application of
legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)
(quotations omitted). We may not reweigh the evidence and decide the facts anew,
and must defer to the ALJ’s decision if it is supported by substantial evidence. See
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

4

Case: 16-11998

B.

Date Filed: 05/03/2017

Page: 5 of 16

Process for Determining Eligibility for Supplemental Security
Income

To be eligible for supplemental security income, a claimant must be under a
disability. 42 U.S.C. § 1382(a)(1), (2); 20 C.F.R. § 416.912. In determining
whether a claimant has proven that she is disabled, the ALJ must complete a fivestep sequential evaluation process. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999). The claimant has the burden to prove that (1) she “has not engaged in
substantial gainful activity,” (2) she “has a severe impairment or combination of
impairments,” and (3) “[her] impairment or combination of impairments meets or
equals a listed impairment,” such that she is entitled to an automatic finding of
disability. Id. To establish that an impairment meets or equals a listed impairment
under step three, a claimant must have a diagnosis included in the listing of
impairments and must provide medical reports documenting that her condition
meets the specific criteria of the listed impairment. See Wilson v. Barnhart, 284
F.3d 1219, 1224 (11th Cir. 2002); 20 C.F.R. § 416.925(a)-(d). “An impairment
that manifests only some of [the] criteria, no matter how severely, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (11th Cir. 1990).
If the claimant is not able to meet or equal the criteria for a listed
impairment, she must proceed to the fourth step, which requires the ALJ to assess
the claimant’s residual functional capacity and determine whether she is able to
return to her past relevant work. Jones, 190 F.3d at 1228; Phillips v. Barnhart, 357
5

Case: 16-11998

Date Filed: 05/03/2017

Page: 6 of 16

F.3d 1232, 1238 (11th Cir. 2004). “At the fifth step, the burden shifts to the
Commissioner to determine if there is other work available in significant numbers
in the national economy that the claimant is able to perform.” Jones, 190 F.3d at
1228. If the Commissioner demonstrates that there are jobs that the claimant can
perform, the claimant must show that she is unable to perform those jobs in order
to establish that she is disabled. Id.
C.

Residual Functional Capacity

Mijenes argues that substantial evidence does not support the ALJ’s
determination that she had the residual functional capacity to perform the full
range of unskilled work with some non-exertional limitations.
“Residual functional capacity,” (hereinafter referred to as functional
capacity) is defined as “the most [a claimant] can still do despite [her] limitations.”
20 C.F.R. § 416.945(a)(1). This determination is based on “all of the relevant
medical and other evidence.” Id. § 416.945(a)(3). The claimant’s functional
capacity is used to gauge whether the claimant can do past relevant work. See
Phillips, 357 F.3d at 1238.
At step four of the sequential evaluation process, the ALJ determined that
Mijenes had the functional capacity to perform a full range of unskilled work at all
exertional levels with some non-exertional limitations. The ALJ determined that
Mijenes retained the mental capacity to, at a minimum: carry out simple
6

Case: 16-11998

Date Filed: 05/03/2017

Page: 7 of 16

instructions; make work-related decisions related to unskilled work; respond
appropriately to supervisors; and adapt to changes in a routine work environment.
Comparing Mijenes’s functional capacity with the physical and mental demands of
her past work experience as a housekeeper, the ALJ determined that Mijenes could
perform her past relevant work.
Substantial evidence supports the ALJ’s determination that Mijenes had the
functional capacity to work at all exertional levels with non-exertional limitations
related to understanding, remembering, and carrying out instructions. As shown
by the medical record, Mijenes had received mostly outpatient treatment for her
bipolar and affective mood disorders. Though she was admitted to the hospital for
a 24-hour psychiatric evaluation in 2011, she presented with normal thought
content and processes. Further, neither of her treating psychiatrists, Drs. Diana De
La Vega and Fernando Gonzalez, indicated that she had delusions or suicidal
ideations. In fact, both doctors consistently stated that Mijenes appeared to be well
at her appointments, in some instances noting that she was alert, coherent, goaloriented, and had fair insight and judgment. Moreover, Mijenes’s elder daughter
reported that although she assisted her mother with various activities, her mother
could complete and manage most household responsibilities, including cooking,
doing laundry, driving short distances, paying household bills, and carrying for her
younger daughter.
7

Case: 16-11998

Date Filed: 05/03/2017

Page: 8 of 16

We are not persuaded by Mijenes’s argument that the ALJ’s functional
capacity determination does not account for the ALJ’s finding that she was
moderately limited in the areas of concentration, persistence, and pace. Because
the medical evidence showed that Mijenes could perform simple, routine tasks
despite her limitations in concentration, persistence, and pace, the ALJ’s limiting
of Mijenes’s functional capacity to unskilled work sufficiently accounted for her
moderate difficulties in concentration, persistence, and pace. Cf. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (“But when medical
evidence demonstrates that a claimant can engage in simple, routine tasks or
unskilled work despite limitations in concentration, persistence, and pace, courts
have concluded that limiting the hypothetical to include only unskilled work
sufficiently accounts for such limitations.”).
Finally, Mijenes’s contention that the ALJ erred by relying entirely on
Mijenes’s daughter’s report concerning Mijenes’s daily activities is without merit.
The record shows that in addition to Mijenes’s daughter’s report, the ALJ based his
decision on a review of the entire medical record, including the findings of
Mijenes’s treating physicians, the opinions of the state agency medical consultants,
her psychiatric evaluation, and her own testimony. In short, the ALJ’s

8

Case: 16-11998

Date Filed: 05/03/2017

Page: 9 of 16

determination regarding Mijenes’s functional capacity was supported by
substantial evidence.1
D.

Past Relevant Work

Mijenes takes issue with the ALJ’s determination that her former job as a
housekeeper qualifies as past relevant work. Past relevant work is defined as work
that a claimant has done in the past 15 years and that was substantial gainful
activity. 20 C.F.R. § 416.960(b)(1). The claimant bears the burden of
demonstrating that she cannot return to her past relevant work. Moore, 405 F.3d at
1211. The determination of whether work constitutes substantial gainful activity
typically requires an evaluation of the claimant’s earnings. 20 C.F.R.
§ 416.974(b)(2). The monthly earnings amounts deemed to constitute substantial
gainful activity for purposes of determining a claimant’s past relevant work are:
(a) $810 for the year 2004; (b) $830 for year 2005; (c) $860 for year 2006; (d)
$900 for year 2007; (e) $940 for year 2008; (f) $980 for year 2009; and (g) $1000
for year 2010. See 20 C.F.R. § 416.974(b)(2)(i); Social Security Administration
Programs Operations Manual System, DI 10501.015.
Mijenes contends that her position as a housekeeper was not past relevant
work because her earnings were not enough to constitute substantial gainful

1

Because substantial evidence supports the ALJ’s determination at step four of the sequential
evaluation process, we do not address Mijenes’s argument regarding the ALJ’s alternative
finding at step five.
9

Case: 16-11998

Date Filed: 05/03/2017

Page: 10 of 16

activity. We disagree. The record shows that Mijenes reported that she was selfemployed as a housekeeper from 2004 through 2010 and earned $1,300 per month.
The ALJ properly considered Mijenes’s work as a housekeeper to be past relevant
work because she held the position within the last 15 years and she admitted that
she earned more than the amount necessary to constitute substantial gainful activity
(which at most was $1,000 per month in 2010). See 20 C.F.R. § 416.974(b)(2)(i);
Social Security Administration Programs Operations Manual System, DI
10501.015. Thus, Mijenes has not met her burden of showing that the ALJ erred in
determining that her work experience as a housekeeper qualified as past relevant
work. See Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991) (“[A] claimant
has the burden of showing that certain work experience is not past relevant
work.”).
E.

Weight Assigned to Medical Opinion Evidence

Mijenes argues that the ALJ improperly weighed the medical opinion
evidence. Specifically, she asserts that the ALJ erred by assigning more weight to
the opinions of the state agency medical consultants than to the opinion of her
treating physician, Dr. De La Vega.
When evaluating the medical opinion evidence, the ALJ must give the
opinion of a treating physician “substantial or considerable weight” unless there is
good cause not to do so. Winschel, 631 F.3d at 1179 (quotations omitted). We
10

Case: 16-11998

Date Filed: 05/03/2017

Page: 11 of 16

have nevertheless concluded that good cause exists for affording less weight to a
treating physician’s opinion when: “(1) [that] opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Phillips, 357 F.3d at 1241. Moreover, the opinion of a treating physician
may be entitled to less weight when the physician’s assessment conflicts with the
claimant’s own reported daily activities. See id. If the ALJ chooses to assign less
weight to a treating physician’s opinion, however, he must clearly articulate his
reasons for doing so. Id.
Mijenes’s medical record includes a mental assessment of ability to do
work-related activities from Dr. De La Vega dated March 24, 2013, in which Dr.
De La Vega opined that Mijenes’s ability to do work-related activities was poor in
most areas, including making occupational adjustments, following detailed
instructions, behaving in an emotionally stable manner, predictability, and
reliability. Further, she concluded that she was generally unable to do work
because of her bipolar disorder and mood instability. The record also includes
state agency consultative examinations dated November 1, 2011, and January 18,
2012, from Dr. J. Patrick Peterson and Dr. Keith Bauer, respectively, in which Drs.
Peterson and Bauer concluded that Mijenes had mild restrictions in activities of
daily living, mild difficulty in maintaining social functioning, mild difficulty in
11

Case: 16-11998

Date Filed: 05/03/2017

Page: 12 of 16

maintaining concentration, persistence, and pace, and had no episodes of
decompensation. They also determined that Mijenes’s affective and personality
disorders were not severe and did not restrict her ability to perform work-related
activities. The ALJ assigned little weight to Dr. De La Vega’s opinion because it
was not supported by the clinical signs and findings, and it was inconsistent with
other evidence in the record, including Mijenes’s own reported daily activities.
The ALJ gave considerable weight to the mental assessments of Drs. Peterson and
Bauer, as they were supported by objective medical evidence and the entire record.
Here, substantial evidence supports the ALJ’s articulation of good cause for
assigning minimal weight to Dr. De La Vega’s opinion regarding Mijenes’s workrelated limitations. Specifically, Dr. De La Vega’s opinion was not bolstered by
other evidence in the record. Of note, Dr. De La Vega opined that Mijenes’s
ability to use judgment, function independently, act predictably in social situations,
behave in an emotionally-stable manner, and remember detailed instructions were
poor, but treatment notes from Mijenes’s other treating psychiatrist, Dr. Fernando
Gonzalez, indicated that Mijenes presented as goal-directed, coherent, relevant,
and with appropriate affect. And while Dr. De La Vega’s own treatment notes
state that Mijenes experienced depression, anxiety, and irritable moods, Dr. De La
Vega had also indicated that Mijenes was alert, fully-oriented, and exhibited goaloriented speech.
12

Case: 16-11998

Date Filed: 05/03/2017

Page: 13 of 16

Mijenes’s testimony and reported daily activities also support the ALJ’s
decision not to assign controlling weight to Dr. De La Vega’s opinion. Mijenes
testified that she lives with her two children, she drives short distances, she
sometimes cooks, and she cares for the two-year-old daughter with help from her
elder daughter. Mijenes’s elder daughter reported that Mijenes does laundry,
cooks simple meals, pays for the utilities and household expenses, cares for the
family pet, and takes care of her very young daughter. In short, substantial
evidence supported the ALJ’s decision to afford less than controlling weight to Dr.
De La Vega’s opinion regarding Mijenes’s work-related limitations.
Further, the ALJ did not place undue weight on the assessments of the state
agency medical consultants. Indeed, the ALJ’s decision was based on the entire
medical record, including not only the assessments of the state agency medical
consultants but also the findings of Mijenes’s treating physicians, the 2011
inpatient-psychiatric evaluation, and Mijenes’s own disability reports and
testimony. See 20 C.F.R. § 416.927(e)(2)(i) (explaining that assessments by the
state agency may be considered expert opinions).2
Mijenes also challenges the weight assigned to the opinions of the state
agency medical consultants because they did not take into account her 2011

2

Although the regulations governing the evaluation of medical evidence were recently
amended, the version effective March 27, 2017, does not apply to the present claim. See 20
C.F.R. § 416.927 (2017); 20 C.F.R. § 416.920c (2017).
13

Case: 16-11998

Date Filed: 05/03/2017

Page: 14 of 16

inpatient-psychiatric evaluation. Again, the ALJ considered the psychiatric
evaluation in his decision, so the fact that the records from Mijenes’s psychiatric
evaluation were not available to the state agency medical consultants when they
rendered their opinions is of no consequence. Indeed, the ALJ clearly considered
evidence other than the opinions of the state agency medical consultants by finding
that Mijenes was moderately limited in maintaining concentration, persistence, and
pace—an area which the state agency medical consultants concluded she had only
mild restrictions. Accordingly, the ALJ did not improperly weigh the medical
opinion evidence.
F.

Credibility Determination

Mijenes further asserts that substantial evidence does not support the ALJ’s
determination that her subjective testimony was not fully credible. To establish a
disability based on subjective testimony of pain and other symptoms, the claimant
must establish: “(1) evidence of an underlying medical condition; and (2) either
(a) objective medical evidence confirming the severity of the alleged pain; or (b)
that the objectively determined medical condition can reasonably be expected to
give rise to the claimed pain.” Wilson, 284 F.3d at 1225.
We have determined that credibility determinations are within the province
of the ALJ. Moore, 405 F.3d at 1212. However, if the ALJ rejects a claimant’s
subjective testimony regarding pain, the ALJ must articulate specific reasons for
14

Case: 16-11998

Date Filed: 05/03/2017

Page: 15 of 16

doing so. Wilson, 284 F.3d at 1225. Otherwise, the claimant’s testimony must be
accepted as true. Id. Although the ALJ need not cite to “particular phrases or
formulations” to support the credibility determination, the ALJ must do more than
merely reject the claimant’s testimony, such that the decision provides a reviewing
court a basis to conclude that the ALJ considered the claimant’s medical condition
as a whole. Dyer, 395 F.3d at 1210 (quotations omitted).
Here, substantial evidence supports the ALJ’s determination that Mijenes’s
statements regarding the intensity, persistence, and limiting effects of her
symptoms were not fully credible. Mijenes testified that she could not work
because of her depression, bipolar disorder, lack of energy, aggression, and
inability to concentrate. The ALJ discredited Mijenes’s statements concerning the
extent of her limitations, concluding that they were not supported by the objective
medical evidence or the disability reports concerning her daily activities.
As noted by the ALJ, Mijenes’s daughter’s description of the activities that
Mijenes could perform included taking care of her young daughter, cooking,
driving short distances, taking care of the family pet, and doing laundry. The
nature of Mijenes’s medical treatment for bipolar and mood disorders also weakens
Mijenes’s contention that she is disabled. Indeed, the record shows that Mijenes
missed several appointments with her psychiatrists throughout 2011 and 2012.
The treatment that she did receive consisted primarily of outpatient medication
15

Case: 16-11998

Date Filed: 05/03/2017

Page: 16 of 16

management, with the exception of the one inpatient-psychiatric evaluation in
November 2011. But even during that inpatient evaluation, Mijenes presented with
intact cognitive functioning, attention and concentration, and memory, as well as
good insight and judgment, abstract thinking, calculation, and knowledge of
information. Because the ALJ articulated clear reasons for discrediting Mijenes’s
subjective complaints regarding the extent of her limitations and those reasons are
supported by substantial evidence, we will not disturb the ALJ’s finding. See
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.”).
III.

CONCLUSION
For all of the above reasons, we affirm the district court’s order affirming

the Commissioner’s denial of Mijenes’s application for supplemental security
income.
AFFIRMED.

16