Mercado v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be affirmed. Signed by Magistrate Judge P. Bradley Murray on 6/14/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARIA De LOURDES BECERRIL
MERCADO,

:
:

Plaintiff,
:
vs.

CA 16-0373-MU
:

NANCY A. BERRYHILL,
Acting Commissioner of Social Security, :
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her claims for a period of disability, disability insurance benefits, and
supplemental security income. The parties have consented to the exercise of jurisdiction
by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this
Court. (Docs. 18 & 20 (“In accordance with the provisions of 28 U.S.C. 636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate
Judge conduct any and all proceedings in this case, . . . order the entry of a final
judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the
administrative record, plaintiff’s brief, the Commissioner’s brief, and the arguments of

counsel at the April 26, 2017 hearing before the Court, it is determined that the
Commissioner’s decision denying benefits should be affirmed.1
I. Procedural Background
Plaintiff protectively filed applications for disability insurance benefits and
supplemental security income on March 4, 2013 and April 1, 2013, respectively, alleging
disability beginning on March 29, 2012. (See Tr. 244-51.) Her claims were initially
denied on August 30, 2013 (Tr. 174-78) and, following Plaintiff’s request for a hearing
before an Administrative Law Judge (see Tr. 181-82), a hearing was conducted before
an ALJ on December 4, 2014 (Tr. 61-109). On March 13, 2015, the ALJ issued a
decision finding that the claimant was not disabled and, therefore, not entitled to social
security benefits. (Tr. 35-57.) More specifically, the ALJ went to the fourth step of the
five-step sequential evaluation process and determined that Mercado is capable of
performing past relevant work as an administrative clerk and a human resources clerk
as she actually performed those jobs (see Tr. 55-56). On April 21, 2015, the Plaintiff
appealed the ALJ’s unfavorable decision to the Appeals Council (Tr. 28) and, the
Appeals Council denied Mercado’s request for review on June 3, 2016 (Tr. 1-3). Thus,
the hearing decision became the final decision of the Commissioner of Social Security.
Plaintiff alleges disability due to hypothyroidism, depression, obesity, and
degenerative disc disease. In light of the issues raised by Plaintiff in her brief (see Doc.

1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 18 & 20 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”))

2

12, at 2), the Court replicates the essential residual functional capacity portions of the
ALJ’s decision, as well as the past relevant work determination, as follows:
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b), which involves lifting
and carrying no more than 20 pounds occasionally and 10 pounds
frequently, sitting at least 6 hours in an 8 hour day, and standing and
walking at least 6 hours in an 8 hour day, except she can perform
only frequent handling bilaterally, occasionally climb stairs, perform
no kneeling or crawling, and have only occasional contact with the
public.
.

.

.

The claimant’s hypothyroidism, obesity and degenerative disc disease
result in the limitation to perform light work with the additional limitations
as described above. Light work[,] as defined in 20 CFR 404.1567(b) and
416.967(b)[,] involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm and leg controls. To
be considered capable of performing a full or wide range of light work, the
claimant must have the ability to do substantially all of these activities. If
the claimant can do light work, the regulations also reflect that she can
also do sedentary work, unless there are additional limiting factors such as
loss of fine dexterity or inability to sit for long periods of time.
The medical evidence of record documents that the claimant was seen at
LSU Medical Center Clinics between January 12, 2011 and January 19,
2012. On January 12, 2011, she was noted to have a low TSH of 0.46
(reference range 0.50-5.00), a low free T4 of 0.57 (reference range 0.601.15) and a low vitamin D level of 10.3 (reference range 32.0-100.0). On
February 4, 2011, she told her provider that she recently moved here from
Puerto Rico. She had a thyroid sonogram on February 9, 2011, which
showed no abnormality. Repeat labs in February 2011 and September
2011 also showed a low TSH and free T4, but a normal free T3. She
underwent an MRI of the pituitary, which was negative for any pituitary
microadenoma. Likewise, the MRI of the brain on September 21, 2011
was within normal limits. The claimant was started on Levothyroxine 50
mcg daily in September 2011. The claimant initially stated that she had not
noticed any change in her symptoms of fatigue and weight gain since
starting the Levothyroxine. However, in November 2011, it was noted that
she was taking her medication with food. She was told to take it on an
3

empty stomach 1 hour prior to any meals or medications. Her free T4 was
within normal limits at 0.70 on November 29, 2011. Her vitamin B12 level
was normal at 342, but her vitamin D was low at 10.5.
The claimant’s Levothyroxine was discontinued on December 1, 2011.
However, on January 19, 2012, the claimant said her symptoms were now
worse and she felt more fatigued [and] had gained weight since
discontinuing the Levothyroxine. Her doctor noted, however, that her
weight change was only two-tenths of a pound since her last visit. The
physical exam on January 19, 2012 showed her neck was supple with no
thyromegaly, no thyroid nodules, and no thyroid bruits. . . . Her doctor
decided to recheck her TSH and free T4, as well as a total T4 and a free
T3. She was started on Vitamin D supplementation twice a week for 6
weeks. The January 19, 2012 thyroid tests showed a low free T4 of 0.51
and a low TSH. Her vitamin D was also low at 15.3.
The claimant was treated by Dr. Salgado in Louisiana on June 1, 2012 for
back pain and pain to her left shoulder and lower left leg. The claimant
said Mobic and Flexeril had helped some, but had not completely relieved
her pain. Dr. Salgado noted the claimant brought copies of her lumbar
spine MRI that showed no abnormality. On physical exam, the claimant
had no tenderness to palpation over the spine, normal range of motion of
the lumbar spine and a negative SLR bilaterally. She had normal range of
motion of all joints in the upper and lower extremities. Dr. Salgado
assessed the claimant with backache and gave her Tramadol to take as
needed for pain.
The claimant saw Dr. Kakazu on July 10, 2012 for prescription refills. She
reported back symptoms and muscle aches, but no arthralgia, soft tissue
swelling, muscle cramps, restless legs, muscle spasms, localized joint
swelling or localized joint stiffness. She was not feeling tired. The physical
exam was normal except tenderness to palpation was present in the back.
She was assessed with hypertension, menopause, and midback pain and
was given Naproxen, Metoprolol, Levothyroxine and Amlodipine.
She saw Dr. Salgado on September 7, 2012 for head and back pain. The
claimant also said she had been feeling very fatigued and had difficulty
sleeping and she needed refills of her thyroid medication. She said she
had been taking Tylenol for headaches without relief. The claimant said
she stopped taking Tramadol for pain because it caused dizziness. The
physical exam showed tenderness to palpation over the lower spine and a
positive SLR bilaterally. She was assessed with hypothyroidism, spinal
ankylosis and hypertension. She was given a prescription of Levothyroid
60 mcg, with 3 refills. The labs showed her TSH was low at 0.106. Her T3
uptake was within normal limits at 29% and T4 was within normal limits at
7.0. She saw Dr. Kakazu on January 4, 2013 for lower back pain and said
4

she did not need refills of her medications. She also told Dr. Kakazu that
she was walking 1-2 times per week for exercise. She was assessed with
lower back pain, but no physical exam findings were noted. She was given
Mobic to take as needed for pain.
The claimant was seen by Ms. Harris at the health department in Alabama
on April 16, 2013, and reported she has high blood pressure, joint pain in
the left leg, back symptoms and muscle spasms. She said she was taking
Amlodipine, Lisinopril and Levothyroxine daily. She also said she was
taking Mobic and Flexeril as needed, as well as Vistaril as needed for
anxiety. The physical exam showed tenderness to palpation and muscle
spasm in the back, but no costovertebral angle (CVA) tenderness. Ms.
Harris assessed her with hypertension, hyperthyroidism and backache.
She returned to the health department on April 30, 2013 for lab results.
The labs showed a low TSH of 0.102 and a free T4 that was within normal
limits at 1.08. She denied palpations, shortness of breath, chest pain,
abdominal pain or dizziness. She complained of recurrent low back pain
that is worse in the morning. She was not feeling tired or poorly and
reported no headaches. She rated her pain a 2/10 on the pain scale (0=no
pain, 10=worst possible pain), but no abnormalities were noted on exam.
She was assessed with hypertension, obesity and depression with
anxiety. Ms. Harris decreased her Synthroid from 50 mcg to 25 mcg and
started her on Zoloft. She also decreased her Norvasc from 10 mg to 5 mg
because her blood pressure was 100/88.
During the consultative exam with Dr. Ozment on July 27, 2013, he noted
the claimant was identified by her Louisiana driver’s license, but she was
driven to the clinic by a relative. The claimant’s chief complaint related to
her low back. The claimant reported that she has sharp pain that she rated
a 10/10. She said there is no radiation of the pain. She said heat helps the
pain and pain medications help a little bit. . . . She said she goes for a
short walk when she gets up in the morning for about 15 minutes. The
claimant reported that her current medications include Naproxen, Flexeril,
Vistaril, Metoprolol, Norvasc and Levothyroxine.
Dr. Ozment noted the claimant walked to the exam room and appeared to
sit comfortably. She could get on the exam table and sit down but she
could not lie down on the table “because her back was hurting so bad.”
The claimant was 5’4” tall and weighed 199 pounds. He blood pressure
was 110/70. . . . Her neck was supple without adenopathy, thyromegaly or
masses. [Th]e claimant’s lungs were clear to auscultation throughout. Her
abdomen was soft, nontender and nondistended. Peripheral pulses were
2+ and equal bilaterally.
Dr. Ozment noted her station and gait were normal. She was poorly
coordinated due to left back pain. She was unable to tandem walk, walk
5

on toes or heels, hop or squat. However, there was no assistive device.
She was only able to forward flex her back with fingers extended to the
level of about the knees. The Romberg was negative. The claimant had
decreased range of motion in the lumbar spine, but range of motion was
generally normal in the cervical region, knee joints, ankle joints and
elbows/forearms. Dr. Ozment noted he was unable to adequately evaluate
her hips because she could not lie down. She had decreased range of
motion in the left shoulder with abduction to about 90 degrees, but she
said that this was because her back was hurting. The seated SLR was
positive in the back at about 15 degrees of lift in the left side of the back.
She could not lie down, so the test was not performed in the supine
position.
Dr. Ozment said the claimant could not abduct her shoulder above 90
degrees, but she said this was due to low back pain. Motor strength in the
lower extremities was 5/5 on the right and 4/5 on the left. There was no
evidence of localized tenderness, erythema or effusion. There was no
evidence of diminution of function with repetition, spasticity or ataxia. Joint
position and vibration sense were normal. Sensation to light touch and
pinprick were grossly intact throughout the upper and lower extremities.
Dr. Ozment diagnosed the claimant with low back pain on the left side with
decreased range of motion of the lumbar spine probably secondary to
degenerative disc disease, decreased range of motion of the left shoulder
of uncertain cause, and positive SLR on the left.
The claimant saw Dr. Bond at the health department on November 22,
2013 for complaints of intermittent lower back pain. She rated her pain a
6/10. She also had been out of Synthroid for weeks and needed refills; but
she did not report feeling tired or poorly. The physical exam showed a
normal musculoskeletal system. No sensory exam abnormalities were
noted and the motor exam demonstrated no dysfunction. No
coordination/cerebellum abnormalities were noted and reflexes were
normal. Dr. Bond assessed the claimant with hypothyroidism, backache
and “no migraine headache.” She was prescribed Levothyroxine,
Tramadol to take as needed for pain and Robaxin to take as needed for
muscle spasms.
On April 2, 2014, Dr. Teplick noted the claimant was seen primarily for
stronger medication for her low back pain. The claimant said Tramadol
was ineffective. Dr. Teplick noted the only drug stronger would be an
opiate, which “would be inappropriate for chronic pain, although a pain
clinic may prescribe one.” She also reported having weakness of her left
ankle for the last year with pain down the lateral side of the left leg to the
ankle. She said she can walk for 15 minutes before having pain. She also
reported having a frontal headache daily for 2 months lasting 2 hours if not
treated, but resolved with Ibuprofen. The claimant reported that she had
6

lost 11 pounds over the last year. Her weight was 187 pounds at this visit.
Dr. Teplick noted sternum tenderness on physical exam; but her back had
no tenderness to palpation, no muscle spasms, and no CVA tenderness.
The SLR was negative and the musculoskeletal exam was normal. A
motor exam demonstrated no dysfunction and no lower extremity
weakness. Dr. Teplick assessed the claimant with depression;
hypertension, well controlled on low dose Amlodipine; hypothyroidism,
thyroid function tests within normal limits on Synthroid with no symptoms;
and backache with leg pain unlikely to be sciatica. He recommended a
trial of 800 mg Ibuprofen and Amitriptyline.
The claimant saw Dr. Teplick on July 7, 2014, with continued low back
pain. Dr. Teplick noted the pain was unchanged except instead of
radiating down the leg to the ankle, it now radiates only to the top of her
thigh. Dr. Teplick noted the x-rays were within normal limits. She had
gained 12 pounds in the last 4 months. She reported occasional swelling
in both feet for the last 2 months that is present in the morning, resolves
during the day, and returns in the evening. She said her headaches were
resolved. On physical exam, there was no sternum tenderness and no
edema was present in the extremities. The back had tenderness to
palpation mostly midline with no muscle spasms and no CVA tenderness.
The SLR was negative. The motor exam demonstrated no dysfunction,
and lower extremity strength was normal and equal. Dr. Teplick assessed
the claimant with hypertension, apparently no need for even low dose
Amlodipine; obesity; hypothyroidism, free T4 within normal limits with
slightly low TSH on 50 mcg Levothyroxine; and backache, no
radiculopathy, and lumbar spine x-ray within normal limits. He gave her a
trial of Carisoprodol and Ibuprofen, and discussed the importance of
weight loss and exercise.
The claimant was seen at the health department most recently of record
by Robin Normand, CRNP, on August 29, 2014. She complained of
weakness, dizziness and feeling very tired. The claimant was concerned
about having some daytime drowsiness from her Amitriptyline that she
was taking for back pain and sleep. The claimant rated her pain at this
visit a 1/10. Her weight was 196, with a BMI of 34.7. She appeared to be
in no acute distress. She was assessed with fatigue and depression with
anxiety, as she told Ms. Normand that she was being treated for same at
Altapointe. Ms. Normand restarted the claimant on Amlodipine for blood
pressure, which was 122/87 when checked and planned to check her
vitamin D level.
In terms of the claimant’s hypothyroidism, treatment has been essentially
routine and/or conservative in nature. The claimant’s representative said
this is the claimant’s most prevalent condition, as it affects her energy
level. Despite the fact that the claimant’s TSH has remained slightly low
7

during the period at issue, the record does not document significant
complications related to the thyroid condition. The claimant’s weight has
generally remained around 200 pounds during the period at issue, with the
exception of an 11-pound weight loss over the last year as reported in
April 2014. Additionally, her skin has generally been normal on exams and
her speech has been normal. The physical exam on January 19, 2011
noted a goiter with the right side being larger than the left. However, no
subsequent exams noted any thyroid-related abnormalities of the neck.
The claimant testified that she feels weak, tired and fatigued every day.
However, many of her treatment notes reflect that she did not report these
symptoms. Indeed, she often reported that she was not feeling tired or
poorly. She also testified that she sleeps at night by taking medication to
fall asleep, but her medication takes many hours to take affect and she
only gets about 3 hours of deep sleep per night. However, Dr. Starkey’s
consultative exam report and the treatment notes from Altapointe reflect
that the claimant improved sleep with the medications prescribed.
The claimant also testified that she has been having headaches for a long
time, which started when she was placed on thyroid medication. The
claimant said she talked to her doctor about the new onset of headaches,
and he gave her other medications for headaches and back pain. The
records in Exhibit B1F mention a diagnosis of migraine headaches, but Dr.
Bond later specifically provided a diagnosis of “no migraine headaches” in
November 2013. In addition, the record includes multiple office visits in
which the claimant did not complain of headaches. She has not
complained of ongoing shortness of breath, heart palpitations, and her
blood pressure has remained within normal limits on medication. I have
accounted for the claimant’s hypothyroidism, as well as her documented
complaints related to fatigue/weakness, dizziness, headaches, difficulty
sleeping, etc. with the limitation to performing light work that includes only
occasionally climbing stairs and performing no kneeling or crawling.
In terms of the claimant’s degenerative disc disease, the record includes
x-rays from September 23, 2011, which showed degenerative changes
with disc space narrowing and moderate posterior and anterior vertebral
spondylosis from C4 to C7 level and minor degenerative changes in the
mid thoracic vertebrae. However, the claimant’s complaints have generally
involved only the lower back. The x-rays of the lumbosacral spine were
normal in September 2011. Dr. Salgado also noted the claimant brought
copies of her lumbar MRI to her June 2012 visit, and it showed no
abnormalities. The x-rays of the lumbar spine on August 27, 2013, which
showed minimal degenerative change at L5-S1. However, x-rays of the
lumbar spine on November 22, 2013 were normal.

8

The physical exams have shown tenderness to palpation in the back and
decreased range of lumbar spine at times. The claimant also had a
positive SLR bilaterally in September 2012 and a positive SLR on the left
in July 2013. I have taken the x-rays of the cervical, thoracic and lumbar
spine into consideration, along with the physical exams as noted above
into account in the residual functional capacity with the limitation to
performing light work including lifting and carrying no more than 20
pounds occasionally and 10 pounds frequently, sitting at least 6 hours in
an 8 hour day, standing and walking at least 6 hours in an 8 hour day,
occasionally climbing stairs, and performing no kneeling or crawling.
However, no greater limitation is warranted, as the other physical exams
have shown no tenderness along the spine, no CVA tenderness, normal
range of motion of the lumbar spine, no muscle spasms and a negative
SLR bilaterally. Furthermore, the neurologic exams have shown no focal
deficits, no sensory abnormalities and no motor dysfunction.
The claimant has also complained of left shoulder and left leg pain, as
noted in June 2012, April 2013 and April 2014. The only physical exam
finding that showed abnormality in the left shoulder was when Dr. Ozment
said she had decreased range of motion and 4/5 motor strength in the left
upper extremity. However, Dr. Ozment noted the claimant said this was
because her back was hurting. Dr. Ozment also noted she had 4/5 motor
strength in the left lower extremity; however, her treating providers have
noted no lower extremity weakness. Dr. Ozment also said she was poorly
coordinated due to left back pain. However, she has generally had normal
range of motion of all joints and no weakness in the lower extremities,
normal gait and station and no coordination/cerebellum abnormalities.
However, I have accommodated the claimant’s left shoulder complaints
and her complaints of CTS symptoms in the right hand and wrist as noted
above with the limitation to performing only frequent handling bilaterally.
Additionally, the limitation of only occasionally climbing stairs and
performing no kneeling or crawling accounts for her allegations of pain
and weakness in the lower extremities.
The claimant has complained of chronic back pain; however, the evidence
does not corroborate her statements to the degree alleged. For example,
her treatment providers recommended she take over the counter NSAIDs
for pain, but she reported that she had not tried any in January 2011 and
November 2011. While she rated her back pain a 10/10 during the
consultative exam with Dr. Ozment on July 27, 2013, she rated her pain a
2/10 twice in April 2013, a 0/10 on July 30, 2013, a 6/10 in November
2013 and a 1/10 in August 2014. When she saw Dr. Bond on November
22, 2013, she described her lower back pain as “intermittent.” She has
been prescribed Mobic and Naproxen for pain, as well as Flexeril,
Tramadol and Robaxin at various times to take as needed for pain and
muscle spasms. The claimant has reported that her medications help
9

some, but she also said her back pain is relieved by using a heating pad.
She has not been prescribed narcotic medications for her pain. The
claimant’s treatment providers have often noted that she was in no acute
distress during office visits.
The claimant is obese with a BMI of 34.3 based on her reported weight of
200 pounds and height of 5’4” at the time of filing. As indicated in SSR 021p, obesity may have an adverse impact on co-existing impairments and
may limit an individual’s ability to sustain activity on a regular and
continuing basis during an 8-hour day, 5-day week or equivalent schedule.
In this case, I note that the claimant’s obesity has had an adverse effect
on her musculoskeletal impairments, as the claimant has been counseled
on the importance of losing weight to help with her back pain by several
providers. Nevertheless, there is no indication that obesity exacerbates
the claimant’s conditions beyond the extent discussed above or is
otherwise disabling. Therefore, I have accounted for any effects of obesity
on the claimant’s other impairments in limiting the claimant to a reduced
range of light work.
The claimant has depression, which results in the limitation on her ability
to have only occasional contact with the public. As noted above, the
claimant was prescribed Zoloft and Vistaril to take as needed for anxiety
complaints by her regular medical providers. On January 19, 2011, the
claimant said she is unable to work, so she stays in her house most of the
day and this was causing her to be depressed. She also said she had a lot
of anxiety. The claimant’s Zoloft was increased due to her anxiety and
depressive symptoms. Some of her providers previously mentioned that
they may refer her to mental health once her thyroid condition was
stabilized if her depression with anxiety symptoms persisted. However, on
April 16, 2013, the claimant reported that she had no prior formal mental
health treatment. The claimant did not present to Altapointe for treatment
with a mental health care specialist until October 2013; and at that time, it
was noted she was referred by her attorney. There were also visits
w[h]ere she specifically noted no mental health complaints. For example,
on January 4, 2013, Dr. Kakazu noted the claimant did not report feeling
down, depressed or hopeless and did not report little interest or pleasure
in doing things. On April 30, 2013, she was started on Zoloft when she
admitted to increased anxiety/depression for 2 years and increased
insomnia. However, during the consultative exam with Dr. Ozment on July
27, 2013, she did not report that she was taking Zoloft.
The claimant underwent a consultative psychological exam with Pamela
M. Starkey, Psy.D. on June 20, 2013. She reported that the depression
and anxiety initially began about 3-4 years ago, before she came to the
United States in 2009. She reported stressors at the onset of her
problems, including 2 deaths in the family, the end of an apparently
10

intimate relationship, and her children moved to the United States. She
reported that she has the anxiety symptoms when she has to wait to do
something (e.g., in a line) or when she has an appointment. She said
sleep was adequate with medication.
The claimant said she has never been in counseling, but she was
prescribed Zoloft and Vistaril. However, she said the medication does not
help her. The claimant told Dr. Starkey that she has the equivalent of a
bachelor’s degree in the United States “in secretary.” She reported she
received her degree in Puerto Rico from “The Eastern University.” The
claimant reported that she worked at “The Judiciary Center” in Fajardo,
Puerto Rico from 2004 to 2010. Dr. Starkey said the claimant’s overall
employment history has been relatively stable. The claimant said she has
not worked since 2010 due to “a lot of back pain.” The claimant said she
lives with her 2 children and a grandson. She has problems dressing
(pants) because of problems bending but she has no problems bathing or
making something simple to eat. She does not grocery shop because her
back hurts if she pushes the cart. She can wash small dishes. She
reported problems with doing laundry due to having to bend and said she
cannot drive because of her back. The claimant reported that her back
hurts “all the time.” Dr. Starkey said the claimant appeared early for the
evaluation and was of average height and moderately overweight. Her
appearance was good.
The claimant’s speech was generally clear and coherent, and of
appropriate rate and volume. Her reported mood was sad and her affect
was dysphoric. Dr. Starkey said she was tearful at various times. The
claimant was alert and oriented to person, place, and time for the
evaluation. Overall, she was able to focus and sustain attention. The
claimant had adequate performance in terms of attention/concentration
during specific mental status tasks. She completed the first several
subtractions of serial 3s without error and accurately spelled “WORLD”
(“MUNDO” in Spanish) backwards. The claimant’s immediate memory
appeared impaired, which Dr. Starkey said seemed to be due to anxiety
and reported concentration problems. The claimant’s thinking was
organized. There was no evidence of delusional thought processes or
paranoia, auditory/visual hallucinations, or any other psychotic symptom.
The claimant’s insight into her current problems appeared fair and her
judgment was adequate regarding future plans and any awarded benefits.
Intellectual functioning was estimated to be Average.
Dr. Starkey assessed the claimant with mood disorder due to
hyperthyroidism versus major depressive disorder, single episode; anxiety
disorder due to hyperthyroidism versus anxiety disorder, NOS; and pain
disorder associated with psychological factors versus pain disorder
associated with psychological factors and a general medical condition. Dr.
11

Starkey opined that the claimant’s ability to understand simple, concrete
instructions appears adequate. Her ability to remember and carry out
simple, concrete instructions appears at least mildly impaired. Her ability
to respond appropriately to supervision and coworkers appears adequate.
Her ability to manage common work pressures appears moderately
impaired.
The claimant underwent an initial psychiatric evaluation at Altapointe with
Severin Grenoble, M.D., on October 9, 2013. Dr. Grenoble said the
claimant was referred to Altapointe “by the lawyer who is working on her
disability case.” The claimant reported severe depression with daily crying
spells, trouble sleeping, and lack of energy and motivation. The claimant
also reported she had a lot of stress, as her father was ill, lack of income,
and she felt she was a burden on her daughter and her family. The
claimant said these stressors were “piling up” and she does not know how
to cope with them. The claimant said, “I was a very happy person but
things started happening.” The claimant told Dr. Grenoble that the Zoloft
and Vistaril prescribed from the health department were helpful at first, but
they were no longer helping. She denied any side effects. Her
recreational/leisure activities include[ed] reading, watching television and
spending time with her grandson. On mental status exam, her general
appearance was appropriate. Her behavior was normal and cooperative.
Her mood was sad and affect was appropriate. Moderate anxiety was
noted. Her appetite was fair and sleep was poor with difficulty falling
asleep. Her memory was unimpaired, but she had anxiety-type racing
thoughts and impaired concentration. Her judgment and insight were
good. Dr. Grenoble diagnosed the claimant with major depressive
disorder, recurrent, moderate; and generalized anxiety disorder. Her Zoloft
and Vistaril dosages were increased and she was given Trazodone to take
as needed for insomnia.
The claimant saw John Hayes, CRNP at Altapointe on November 6, 2013
for medication management. She reported that she felt like her heart was
racing when she took Zoloft at the increased dosage, so this medication
was discontinued and replaced with Paxil. She endorsed auditory
hallucinations described as “footsteps and feels like someone sits next to
her.” Her concentration was unimpaired, and Mr. Hayes said she did not
present as depressed. She had full affect and smiled appropriately. Mild
anxiety was noted. On December 18, 2013, the claimant saw Sheri
Lazenby, CRNP, and again reported that she hears her name being called
by her grandchild on occasion, but she said this was “not too distressing.”
She said her sleep and appetite were good, but she had some continued
depression. Her Paxil dosage was increased. No medication side effects
were reported.

12

The claimant saw Lauren Turnbow, M.D. at Altapointe on March 7, 2014.
Dr. Turnbow noted the claimant was confused over her medications, as
she was getting medications from both Altapointe and the health
department. The claimant reported medications helped for depression,
anxiety and sleep when she took them. However, she had not taken her
Paxil and Trazadone for the past 2 weeks due to 1 day of nausea and
vomiting. She reported increased anxiety, difficulty sleeping, depressed
mood as a result. Dr. Turnbow noted the claimant “was observed smiling
and laughing on [her] cell phone in [the] lobby waiting areas when called
back to [the] physician’s office.” Dr. Turnbow discontinued the Trazadone,
as she has other medications for sleep and mood. The claimant said Paxil
was more effective than Zoloft, so this medication was restarted. Vistaril
was continued as prescribed. Dr. Turnbow said the claimant ”appears
stable with minimal mood instability.” Her appetite was stable and sleep
was good. The claimant had normal memory, attention and concentration.
The claimant saw Mr. Hayes at Altapointe on July 28, 2014 and her
mental status exam findings were again improved. Her mood was normal
and affect was euthymic with normal range. She had no auditory or visual
hallucinations. Her memory was intact and attention and concentration
appeared intact. Her Paxil and Vistaril were refilled as previously
prescribed.
Despite the claimant’s allegations that she suffers from depression with
anxiety, the evidence reflects that her level of mental functioning is only
moderately impaired by her mental health symptomatology. The record
reflects that the claimant did not seek formal mental health treatment for
her depression until October 2013, when she was referred by her attorney.
She had only been prescribed medications by her general treating
physicians prior to that time.
I have accounted for the claimant’s complaints of symptoms related to
depression[,] including crying spells, mood swings, anxiety and insomnia,
etc. that have improved with more recent treatment at Altapointe, with the
limitation to having only occasional contact with the public. This limitation
is supported by her testimony that she had no social life until only recently
when she started going to church. She said she did not know many people
and did not have enthusiasm to get to know people until recently. No
greater limitation is necessary, as the claimant said she spends time with
her father and grandson daily and communicates with others via
telephone and the computer. The claimant also told Dr. Starkey that she
only has the anxiety symptoms when she has to wait in line to do
something or when she has an appointment. Additionally, the claimant has
reported the medications were helpful when taken as prescribed, as noted
by Dr. Turnbow in March 2014; and her mental status exam was normal in
July 2014.
13

As for the opinion evidence, Dr. Starkey opined that the claimant’s ability
to understand simple, concrete instructions appears adequate. However,
her ability to remember and carry out simple, concrete instructions
appeared at least mildly impaired. She said the claimant’s ability to
respond appropriately to supervision and coworkers appears adequate,
but her ability to manage common work pressures appeared moderated
impaired.
I give Dr. Starkey’s opinion . . . some weight, as the most significant
limitation assigned was a moderate limitation in the ability to manage
common work pressures. I accounted for this with the limitation to having
only occasional contact with the public. This limitation is also consistent
with Dr. Starkey’s finding that the claimant’s ability to respond
appropriately to supervision and coworkers was adequate. However, I do
not give significant weight to Dr. Starkey’s statement that the claimant’s
ability to remember and carry out instructions appears at least mildly
impaired because the evidence, including Dr. Starkey’s own narrative
report, does not support any limitation in this area. For example, the
claimant told Dr. Starkey that she quit her prior employment primarily due
to physical complaints and has not worked since 2010 due to “a lot of back
pain.” Similarly, the claimant told her treatment providers at Altapointe that
she stopped working in 2010 due to back pain. The claimant has also
reported that she was never terminated from past employment and she
reported that she enjoys reading often. Dr. Starkey said the claimant’s
memory “appeared impaired,” but this was attributed to anxiety and the
claimant’s “reported concentration problems.” However, her recent and
remote memory were not impaired, and Dr. Starkey said her attention and
concentration were adequate on mental status exam. Dr. Starkey also
estimated that the claimant has Average intelligence. The claimant has a
bachelor’s degree. The Altapointe records reflect unimpaired attention,
concentration and memory once her medications were adjusted and taken
as prescribed. Therefore, no limitations on the claimant’s ability to
remember and carry out instructions are warranted.
I give some weight to the findings and opinion of Donald E. Hinton, Ph.D.
in Exhibits B3A and B4A. On June 26, 2013, Dr. Hinton completed a
Psychiatric Review Technique Form (PRTF) and found that the claimant
had the following limitations: mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning; moderate difficulties
in maintaining concentration, persistence or pace; and no episodes of
decompensation. In the Mental Residual Functional Capacity (MRFC)
Assessment, Dr. Hinton opined that the claimant has the ability to
understand, remember and carry out very short and simple instructions;
can attend for 2-hour periods; should have infrequent contact with the
general public; and changes in work setting should be minimal.
14

Like Dr. Hinton, I assigned a moderate limitation in social functioning, as
the claimant testified that she used to drive and socialize when she lived in
Puerto Rico. However, she said her only socialization outside of her family
currently is going to church. The claimant said she started going to church
a few months ago and had no social life before that because she did not
know a lot of people and did not have enthusiasm to get to know people.
Similar to Dr. Hinton in the MRFC, I found that the claimant should only
have occasional contact with the public. However, no additional limitations
are necessary, as the claimant’s symptoms have improved with more
recent treatment at Altapointe. The claimant also said she spends time
with her father and grandson daily and communicates with others via
telephone and the computer.
However, unlike Dr. Hinton, I assigned a mild limitation in concentration,
persistence or pace because the claimant has reported that she can
manage finances and reported no difficulty with memory, completing
tasks, concentration, understanding or following instructions. Additionally,
no significant attention/concentration deficits were noted by Dr. Starkey in
Exhibit B4F. The more recent treatment notes indicate no abnormalities in
attention, concentration and memory. The claimant also testified that she
has a bachelor’s degree and she was able to obtain a Louisiana driver’s
license. Therefore, I give no significant weight to Dr. Hinton’s findings in
the MRFC with regard to handling only very short and simple instructions.
With regard to the claimant’s physical limitations, I give some weight to Dr.
Ozment’s findings and opinion in Exhibit B5F, to the extent it is consistent
with and supported by the overall evidence of record. Dr. Ozment
assigned the following limitations, which he attributed to low back pain: He
said the claimant can stand for up to 4 hours and walk for less than 2
hours; climb steps and stairs occasionally; climb ladders occasionally; and
never climb scaffolds and ropes. Dr. Ozment also said the claimant should
never stoop, crouch, kneel or crawl, noting “She could do none of those
maneuvers at the time of this exam due to low back pain.” Dr. Ozment
said unprotected heights would be limited due to her back pain and she is
“not used to unprotected heights.” Dr. Ozment said the claimant could lift
10 to 20 pounds occasionally and 5 to 10 pounds frequently, noting
justification for this limitation would be mostly on the left because she had
decreased range of motion of the left shoulder. Dr. Ozment also said the
claimant can sit for up to 6 hours, assigned no limitations in terms of
gross/fine manipulative activities, hearing, speaking and traveling.
The record does not support a finding that the claimant can stand only 4
hours or that she can never stoop. Dr. Ozment assigned these limitations
due to low back pain. However, Dr. Ozment noted the functional
limitations were based on both subjective and objective findings. I note the
15

claimant’s chief complaint during the consultative exam with Dr. Ozment
was low back pain, which she rated a 10/10. However, she only rated her
low back pain between a 1/10 and a 6/10 to her treatment providers.
There were also instances when she rated her pain a 0/10. Therefore, the
pain complaints presented to Dr. Ozment are not consistent with the
statements given to her treatment providers. She also initially told Dr.
Ozment that she does not do her housework because of back pain, but
she later stated that she helps her daughter with light housework. As
stated previously, most of the physical exams of record reflected normal
range of motion, no CVA tenderness, no muscle spasm, no lower
extremity weakness, and she had a negative SLR bilaterally on multiple
visits. The neurologic exams have shown no focal deficits, no sensory
abnormalities and no motor dysfunction that would support the limitations
assigned by Dr. Ozment. Dr. Ozment also said she was poorly
coordinated due to left back pain. However, the other records reflect that
she has generally had normal range of motion, no weakness in the lower
extremities, normal gait and station and no coordination/cerebellum
abnormalities.
Additionally, although Dr. Ozment said the limitations assigned with regard
to lifting and carrying were “mostly on the left” and due to decreased range
of motion in that shoulder, I included similar limitations in the residual
functional capacity to account for the x-rays of her spine showing
degenerative disc disease and the physical exams as described above. I
also limited the claimant to performing only frequent handling bilaterally,
occasionally climbing stairs, and no kneeling or crawling due to the
findings related to her left shoulder, her CTS complaints, and her obesity.
.

.

.

6.
The claimant is capable of performing past relevant work as an
administrative clerk [and a human resources clerk]. This work does
not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 404.1565 and
416.965).
At the hearing, the vocational expert was asked to classify the claimant’s
past work by skill and exertional level. She responded that the claimant
had worked as a human resource clerk (DOT 209.362-026), a sedentary,
semiskilled job with an SVP of 4 and administrative clerk (DOT 219.362010), a light, semi-skilled job with an SVP of 4.
The claimant reported that she worked 40 hours a week as a project
worker/secretary for a Head Start Program in Puerto Rico from
approximately 1993 to 2004, earning $8.75 per hour. She also said she
worked 40 hours a week as a clerical worker/secretary at the courthouse
16

from 2004 to either April 2010 or January 2011, earning $12.00 per hour.
The claimant’s earnings records reflect SGA level earnings during the last
15 years while the claimant was employed at both of these jobs. The
claimant also performed these jobs for long enough such that she learned
the jobs. Therefore the work meets the definition of past relevant work.
In comparing the claimant’s residual functional capacity with the physical
and mental demands of this work, I find that the claimant is able to
perform it as actually performed. The vocational expert testified that the
claimant’s past work as an administrative clerk and human resources clerk
requires only frequent handling. Therefore, these occupations are
consistent with the limitations assigned in the residual functional capacity.
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Occupational Titles.
The claimant’s representative also asked the vocational expert whether a
hypothetical individual could perform the claimant’s past work if, in
addition to the limitations assigned in the residual functional capacity
above, the individual would have limitations consistent with those
assigned by Dr. Starkey in Exhibit B4F such that the individual would be
moderately impaired (defined as 1/3 to 2/3 of the workday) in terms of
responding to common work pressures and mildly impaired (defined as
less than 1/3 of the workday) in the ability to remember and carry out
simple, concrete instructions. The vocational expert noted that the “mild”
definition assigned by the representative would equate to “occasional” and
the “moderate” definition would equate to “frequent” in vocationally
relevant terms. The vocational expert stated that if a person can only
perform simple, concrete tasks and can be expected to be unable to do so
up to 1/3 of the day, this individual is limited to unskilled work. Thus, he or
she cannot do the claimant’s past work. Additionally, if the individual
cannot manage work pressures between 1/3 and 2/3 of the day, he or she
would be unable to sustain work activity even on an unskilled level.
However, as discussed in detail above, significant weight was not given to
these limitations as assigned by Dr. Starkey.
The claimant’s representative then asked the vocational expert if an
individual could perform claimant’s past work with the limitations set forth
by Dr. Ozment in Exhibit B5F. The vocational expert responded that the
individual could perform the claimant’s past work, as there are a number
of light jobs that do not require standing/walking of 6 hours per day. She
also said the claimant’s past jobs would be consistent with these
limitations as performed by the claimant.

17

(Tr. 42, 43-54 & 55-56 (internal citations omitted; emphasis in original)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Social Security, 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)2 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden, at the fourth step, of proving that she is unable to perform
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to h[er] past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do her past relevant work, it then
becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is
capable—given her age, education, and work history—of engaging in another kind of
2

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

18

substantial gainful employment that exists in the national economy. Phillips, supra, 357
F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529
U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform her past relevant
work as an administrative clerk and a human resources clerk, as she actually performed
those jobs, is supported by substantial evidence. Substantial evidence is defined as
more than a scintilla and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists,
we must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986).3 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1,
2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And,
“’[e]ven if the evidence preponderates against the Commissioner’s findings, [a court]
must affirm if the decision reached is supported by substantial evidence.’” Id. (quoting
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir.
2004)).

3

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

19

On appeal to this Court, Mercado asserts three reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ reversibly erred in finding that she can perform her past relevant work, given
that she did not perform that work in the United States and, therefore, her inability to
communicate in English would preclude her performance of such work; (2) the ALJ
reversibly erred in failing to give adequate weight to the opinion of the consulting
psychologist, Dr. Pamela Starkey; and (3) the ALJ’s residual functional capacity
determination is not supported by substantial evidence.
A.

Did the ALJ Err in Finding Plaintiff is Capable of Performing her Past

Relevant Work? Plaintiff initially contends that the ALJ reversibly erred in concluding
that she could perform her past relevant work as a human resources clerk and an
administrative clerk given that she has moved to the United States and does not speak,
write or read in English, thereby precluding her work as it was performed and as it is
generally performed in the national economy. (See Doc. 12, at 2-4.)
[A]t the hearing, Plaintiff’s counsel questioned the Vocational Expert as to
whether the Plaintiff could perform her past work given that the Plaintiff
could not read, write, or speak English. Tr. at 106. The Vocational Expert
testified that the Plaintiff could perform her past work as it is performed in
Puerto Rico, but the great majority of occupations in the United States
would require the Plaintiff to read, write, or speak English. Tr. at 107. The
Plaintiff would therefore be unable to perform her past work as it is
generally required by employers in the national economy.
The Plaintiff’s past work as a human resource clerk and an
administrative clerk was only ever performed in Puerto Rico. As a human
resource clerk and administrative clerk in Puerto Rico, the Plaintiff was not
required to speak or write in English. The Plaintiff has not performed her
past relevant work in the United States where being fluent in English
would be a requirement. In her decision, the Administrative Law Judge
does not address the Vocational Expert’s testimony that the Plaintiff would
not be able to perform her past relevant work in the United States.

20

(Id. at 3-4.)
The undersigned finds that the ALJ committed no error in finding that Mercado
can perform her past relevant work as a human resources clerk and an administrative
clerk without specifically taking into account/considering the fact that Plaintiff does not
speak, write or read in English because the ability to speak, read or write in English, that
is, the ability to communicate in English, “is a vocational factor related to education, not
an impairment[,]” Nunez v. Commissioner of Social Security, 2017 WL 942991, *4 (M.D.
Fla. Mar. 10, 2017) and where, as here, “a claimant has the RFC to perform past work,
the vocational factor of education is not considered[.]” Id.; see, e.g., 20 C.F.R. §
404.1560(b)(3) (2016) (“If we find that you have the residual functional capacity to do
your past relevant work, we will determine that you can still do your past work and are
not disabled. We will not consider your vocational factors of age, education, and
work experience or whether your past relevant work exists in significant numbers in the
national economy.” (emphasis supplied)). In other words, “the issue of Plaintiff’s ability
to speak, read, or write in English is not addressed in determining whether [s]he can
return to work” as a human resources clerk or an administrative clerk. Nunez, supra, at
*4, citing Hernandez v. Astrue, 2010 WL 5387601, *3 (M.D. Fla. Dec. 22, 2010) (stating
claimant’s “lack of fluency in English is not a factor to be considered in determining
whether he could return to past work” and the “ability to communicate in English is an
aspect of the vocational factor of education” which is not considered if the claimant has
the RFC to perform his past relevant work), aff’d, 433 Fed.Appx. 821, 823 n.1 (11th Cir.
Jul. 11, 2011) (noting that the DOT does not specify that the claimant must be able to
perform the job in English). Accordingly, this Court finds that because, as will made

21

clear later in this opinion, the ALJ properly determined that Mercado retains the residual
functional capacity to perform her past relevant work as a human resources clerk and
an administrative clerk, the ALJ did not err in finding Mercado could perform that past
relevant work without addressing the issue of her ability to speak, read, or write in
English. See Nunez, supra.
B.

Opinion of Consultative Examiner Dr. Pamela Starkey. Mercado

contends that the ALJ reversibly erred in not assigning significant weight to the opinion
of consultative examiner Dr. Pamela Starkey that Plaintiff would have at least mild
limitations in her ability to remember and carry out simple, concrete instructions. (See
Doc. 12, at 4-7.) According to Mercado, Dr. Starkey’s opinion in this regard is entitled to
controlling weight because it “is not internally [in]consistent nor is it inconsistent with the
opinion of Plaintiff’s treating doctors or State agency reviewing psychiatrist, Dr. Hinton.”
(Id. at 7.)
There can be little question but that “[w]eighing the opinions and findings of
treating, examining, and non-examining physicians is an integral part of the process for
determining disability.” Kahle v. Commissioner of Social Security, 845 F.Supp.2d 1262,
1271 (M.D. Fla. 2012). In general, “the opinions of examining physicians are given more
weight than those of non-examining physicians, treating physicians are given more
weight than those of physicians who examine but do not treat, and the opinions of
specialists are given more weight on issues within the area of expertise than those of
non-specialists.” McNamee v. Social Security Administration, 164 Fed.Appx. 919, 923
(11th Cir. Jan. 31, 2006). In assessing the medical evidence, “[t]he ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor[,]”

22

Romeo v. Commissioner of Social Security, 2017 WL 1430964, *1 (11th Cir. Apr. 24,
2017) (citing Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1179 (11th
Cir. 2011)), and the ALJ’s stated reasons must be legitimate and supported by the
record, see Tavarez v. Commissioner of Social Security, 638 Fed.Appx. 841, 847 (11th
Cir. Jan. 7, 2016) (finding that the “ALJ did not express a legitimate reason supported
by the record for giving [the consulting physician’s] assessment little weight.”).
In this case, the ALJ certainly stated with particularity the weight she was
affording Dr. Starkey’s various opinions and the reasons therefor. For instance, the ALJ
accorded “some” weight to Dr. Starkey’s opinion that Mercado would have a moderate
limitation in the ability to manage common work pressures and accounted for that
limitation by finding, in the RFC determination, that Plaintiff can have only occasional
contact with the public (Tr. 52). In addition, and importantly, the ALJ declined to give
“significant weight to Dr. Starkey’s statement that the claimant’s ability to remember and
carry out [simple, concrete] instructions appears at least mildly impaired[.]” (Id.) The ALJ
then explained her reasons for failing to accord significant weight to this limitation, as
follows:
[T]he evidence, including Dr. Starkey’s own narrative report, does not
support any limitation in this area. For example, the claimant told Dr.
Starkey that she quit her employment primarily due to physical complaints
and has not worked since 2010 due to “a lot of back pain.” Similarly, the
claimant told her treatment providers at Altapointe that she stopped
working in 2010 due to back pain. The claimant has also reported that she
was never terminated from past employment and she reported that she
enjoys reading often. Dr. Starkey said the claimant’s memory “appeared
impaired,” but this was attributed to anxiety and the claimant’s “reported
concentration problems.” However, her recent and remote memory were
not impaired, and Dr. Starkey said her attention and concentration were
adequate on mental status exam. Dr. Starkey also estimated that the
claimant has Average intelligence. The claimant has a bachelor’s degree.
The Altapointe records reflect unimpaired attention, concentration and
23

memory once her medications were adjusted and taken as prescribed.
Therefore, no limitations on the claimant’s ability to remember and carry
out instructions are warranted.
(Id. at 52-53.)
The Court finds that the reasons offered by the ALJ for failing to accord
significant weight to Dr. Starkey’s “remember and carry out” limitation—essentially
internal inconsistency and inconsistent with the remaining evidence of record—are
legitimate and supported by the record. This Court simply cannot argue with the ALJ’s
reasoning that this limitation by Starkey is inconsistent with (that is, very much in
tension with) the consultative psychologist’s objective findings that the claimant had
adequate performance in terms of attention/concentration during specific mental status
tasks and in regards to recent and remote memory functions, with her impairment in
immediate memory being attributed to her anxiety and reported concentration problems
(compare id. with Tr. 427). In other words, the undersigned cannot find anything
“erroneous” about the ALJ finding Dr. Starkey’s noted “mild” limitation in Mercado’s
ability to “remember, and carry out simple, concrete instructions” to be inconsistent with
the Plaintiff’s noted adequate ability to remember (upon request/instruction) what she
ate for dinner the previous evening, a current news event, and to report her birthdate
and other autobiographical information, as well as her ability to complete the first
several subtractions of serial 3s without error and accurately spelling WORLD (MUNDO
in Spanish) backwards (see Tr. 427). In addition, the ALJ properly afforded this
limitation no significant weight in light of the remaining evidence of record, which, as the
ALJ noted, “reflect unimpaired attention, concentration and memory once her
medications were adjusted and taken as prescribed.” (Tr. 53.) Indeed, the records from

24

Altapointe post-dating Dr. Starkey’s June 21, 2013 evaluation (see Tr. 428 (report
signed on June 21, 2013)) reflect the following: (1) on November 6, 2013, Mercado’s
memory was unimpaired and no impairment in concentration was noted (Tr. 441); (2) on
December 18, 2013, Mercado’s memory was unimpaired and no impairment in
concentration was noted (Tr. 439); (3) on March 7, 2014, Plaintiff’s attention and
concentration were intact and her immediate/short term, recent and remote memory
appeared to be intact (Tr. 445); and (4) on July 28, 2014, Mercado’s attention and
concentration were intact and her immediate/short term, recent and remote memory
appeared to be intact (Tr. 448). Based upon the foregoing evidence, the undersigned
finds substantial support for the ALJ’s determination that “no limitations on the
claimant’s ability to remember and carry out instructions are warranted.” (Tr. 53.)
C.

Does Mercado Retain the Residual Functional Capacity to Perform a

Limited Range of Light Work? The Plaintiff’s final assignment of error is that the
ALJ’s RFC determination for a limited range of light work is not supported by substantial
inasmuch as the ALJ cherry-picked from the limitations noted by Dr. Ozment and
substituted her opinion for that of Dr. Ozment when Dr. Ozment’s opinion was not
consistent with her own determination of RFC. (See Doc. 12, at 7-9.)
The responsibility for making the residual functional capacity determination rests
with the ALJ. Compare 20 C.F.R. § 404.1546(c) (“If your case is at the administrative
law judge hearing level . . ., the administrative law judge . . . is responsible for assessing
your residual functional capacity.”) with, e.g., Packer v. Commissioner, Social Security
Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC
determination is an assessment, based on all relevant evidence, of a claimant’s

25

remaining ability to do work despite her impairments. There is no rigid requirement that
the ALJ specifically refer to every piece of evidence, so long as the ALJ’s decision is not
a broad rejection, i.e., where the ALJ does not provide enough reasoning for a
reviewing court to conclude that the ALJ considered the claimant’s medical condition as
a whole.” (internal citation omitted)). A plaintiff’s RFC—which “includes physical abilities,
such as sitting, standing or walking, and mental abilities, such as the ability to
understand, remember and carry out instructions or to respond appropriately to
supervision, co-workers and work pressure[]”—“is a[n] [] assessment of what the
claimant can do in a work setting despite any mental, physical or environmental
limitations caused by the claimant’s impairments and related symptoms.” Watkins v.
Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012)
(citing 20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)); see also 20 C.F.R. §
404.1545(a)(3) (in assessing RFC, the Commissioner is required to consider
“descriptions and observations of [the claimant’s] limitations from [] impairments,
including limitations that result from [] symptoms, such as pain, provided by [the
claimant] . . . .”).
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL
1020428, *9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345,
1347 (M.D. Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.
Ala. Feb. 14, 2013) (“’[T]he ALJ must link the RFC assessment to specific evidence in
the record bearing upon the claimant’s ability to perform the physical, mental, sensory,

26

and other requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013);
see also Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per
curiam) (“The ALJ must state the grounds for his decision with clarity to enable us to
conduct meaningful review. . . . Absent such explanation, it is unclear whether
substantial evidence supported the ALJ’s findings; and the decision does not provide a
meaningful basis upon which we can review [a plaintiff’s] case.” (internal citation
omitted)).4 However, in order to find the ALJ’s RFC assessment supported by
substantial evidence, it is not necessary for the ALJ’s assessment to be supported by
the assessment of an examining or treating physician. See, e.g., Packer, supra, 2013
WL 593497, at *3 (“[N]umerous court have upheld ALJs’ RFC determinations
notwithstanding the absence of an assessment performed by an examining or treating
physician.”); McMillian v. Astrue, 2012 WL 1565624, *4 n.5 (S.D. Ala. May 1, 2012)
(noting that decisions of this Court “in which a matter is remanded to the Commissioner
4

It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather, must
be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s
decision because, according to the Commissioner, overall, the decision was “adequately
explained and supported by substantial evidence in the record”; holding that affirming that
decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court ‘must
reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted’” (quoting
Hanna, 395 Fed. Appx. at 636 (internal quotation marks omitted))); see also id. at *3 n.4 (“In his
brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate conclusion].
However, because the ALJ did not state his reasons, the court cannot evaluate them for
substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate conclusion
is unsupportable on the present record; the court holds only that the ALJ did not conduct the
analysis that the law requires him to conduct.” (emphasis in original)); Patterson v. Bowen, 839
F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon the reasons
he gave.”).

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because the ALJ’s RFC determination was not supported by substantial and tangible
evidence still accurately reflect the view of this Court, but not to the extent that such
decisions are interpreted to require that substantial and tangible evidence must—in all
cases—include an RFC or PCE from a physician” (internal punctuation altered and
citation omitted)); but cf. Coleman v. Barnhart, 264 F.Supp.2d 1007 (S.D. Ala. 2003).
In this case, the Court finds that the ALJ linked her RFC assessment—that is, a
reduced range of light work—to specific evidence in the record bearing upon Mercado’s
ability to perform the physical, mental, sensory and other requirements of work.
(Compare Tr. 43-44, 47-49 & 52-54 with generally Tr. 322-474.) In particular, even
though the Plaintiff is correct that the ALJ did not “endorse” all the physical limitations
noted by Dr. Ozment (during the course of his July 27, 2013 examination), particularly
the consultative examiner’s opinion that Mercado can only stand 4 hours out of a 8-hour
workday and cannot stoop due to low back pain and that she was poorly coordinated
(see Tr. 432-34; compare id. with Tr. 53-54 & 54), the ALJ set forth reasons for rejecting
these particular limitations (Tr. 54).
The record does not support a finding that the claimant can stand only 4
hours or that she can never stoop. Dr. Ozment assigned these limitations
due to low back pain. However, Dr. Ozment noted the functional
limitations were based on both subjective and objective findings. I note the
claimant’s chief complaint during the consultative exam with Dr. Ozment
was low back pain, which she rated a 10/10. However, she only rated her
low back pain between a 1/10 and a 6/10 to her treatment providers.
There were also instances when she rated her pain a 0/10. Therefore, the
pain complaints presented to Dr. Ozment are not consistent with the
statements given to her treatment providers. She also initially told Dr.
Ozment that she does not do her housework because of back pain, but
she later stated that she helps her daughter with light housework. As
stated previously, most of the physical exams of record reflected normal
range of motion, no CVA tenderness, no muscle spasm, no lower
extremity weakness, and she had a negative SLR bilaterally on multiple
visits. The neurologic exams have shown no focal deficits, no sensory
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abnormalities and no motor dysfunction that would support the limitations
assigned by Dr. Ozment. Dr. Ozment also said she was poorly
coordinated due to left back pain. However, the other records reflect that
she has generally had normal range of motion, no weakness in the lower
extremities, normal gait and station and no coordination/cerebellum
abnormalities.
(Id.)
The undersigned finds that the ALJ was absolutely correct in observing that the
foregoing limitations are traceable to both subjective and objective findings and properly
rejected those limitations given that Plaintiff’s pain complaints to Dr. Ozment were not
consistent with the pain statements Mercado made to her treating doctors. Indeed,
Mercado complained to Ozment, on July 27, 2013, that her low back pain was a 10 on a
scale of 1 to 10 (see Tr. 430), a level that was never reached by Plaintiff at any time
before or after July 27, 2013 (compare, e.g., Tr. 401-03 (on September 7, 2012,
Mercado complained of back pain, was tender to palpation over the lower spine, and
had positive straight-leg raising test bilaterally; she was told to maintain regular
exercise); Tr. 405-06 (on June 1, 2012, when Mercado appeared for follow-up regarding
her back pain, it was noted that she was in no acute distress, with negative straight leg
raising bilaterally and normal range of motion of the lumbar spine); Tr. 411-12 (on April
30, 2013, Mercado was noted to be in no acute distress, despite complaints of back
pain, with examination of the musculoskeletal system being normal and pain rated at 2
on a scale of 0-10); Tr. 413 & 415 (on April 16, 2013, examination of the back revealed
tenderness on palpation and muscle spasms, but plaintiff was noted to be in no acute
distress, with a pain level of 2 on a scale of 0-10) with Tr. 467-68 (on July 30, 2013, a
mere 3 days after Ozment’s examination, Mercado was found, on physical examination,
to be in no acute distress and her pain level was a “0”); Tr. 462-63 (on November 22,
29

2013, though Plaintiff complained of back pain of “6,” she was noted to be in no acute
distress and examination of her musculoskeletal system was normal); Tr. 460-61 (on
April 2, 2014, Mercado complained of pain but was found to be in no acute distress, with
examination of the back revealing no tenderness on palpation, no muscle spasm, and
no costovertebral angle tenderness); Tr. 458-59 (on July 7, 2014, despite Mercado’s
back pain complaints, she was found to be in no acute distress, with mostly midline
tenderness on palpation of the back but no muscle spasm or costovertebral angle
tenderness; Plaintiff was advised of the importance of weight loss and exercise); and Tr.
456-57 (on August 28, 2014, Mercado was noted to be in no acute distress, with a pain
level of “1”)). Accordingly, the undersigned finds that the ALJ properly discounted Dr.
Ozment’s standing and stooping limitations since they were based, at least in part if not
in greater measure, on what can only be regarded as Mercado’s exaggerated low back
pain complaints on July 27, 2013. In addition, these limitations find no support in the xrays of record, all of which are normal or unremarkable (see Tr. 352 (normal
radiography of the lumbosacral spine on September 23, 2011); Tr. 436 (August 27,
2013 RAD of the lumbar spine revealed minimal degenerative changes); Tr. 473 (two
views of the lumbar spine on November 22, 2013 were normal)), or the majority of
physical and neurological findings of record (compare, e.g., Tr. 404 (July 10, 2012
examination revealed tenderness on palpation of the back but no peripheral neuropathy,
no sensory abnormalities, normal reflexes, and no dysfunction on motor examination);
Tr. 406 (on June 1, 2012, a normal neurological examination was noted and an
examination of the back revealed no tenderness to palpation over the spine, normal
range of motion of the lumbar spine, and negative straight leg raising bilaterally); Tr. 412

30

(examination of the musculoskeletal system on April 30, 2013 was normal); Tr. 415
(examination of the back on April 16, 2013 revealed tenderness on palpation and
muscle spasm but no costovertebral angle tenderness); Tr. 459 (examination on July 7,
2014 revealed mostly midline tenderness on palpation, no muscle spasm, no
costovertebral angle tenderness, negative straight leg raising, and a motor examination
which “demonstrated no dysfunction LE strength normal and equal”); Tr. 461 (on April 2,
2014, there was no tenderness on palpation of the back, no muscle spasm, and no
costovertebral angle tenderness, negative straight leg raising, and a motor exam that
revealed “no dysfunction No LE weakness”) & Tr. 463 (on November 22, 2013,
examination of the musculoskeletal system was normal, reflexes were normal, no
sensory abnormalities were noted, and motor exam demonstrated no dysfunction)).5
Accordingly, the undersigned finds no merit to Mercado’s claim that the ALJ erred in
rejecting certain limitations noted by Dr. Ozment and, as a result, reached an RFC
assessment that is not supported by substantial evidence.6 The ALJ’s fourth-step denial
of benefits is supported by substantial evidence and is due to be affirmed.

5

The ALJ’s rejection of Dr. Ozment’s suggestion that Mercado was poorly
coordinated finds substantial support in the record. (See, e.g., Tr. 404 (on July 10, 2012, no
coordination or cerebellum abnormalities were noted) & Tr. 463 (on November 22, 2013, no
coordination or cerebellum abnormalities were noted)).
6

Even if this Court was to find some error in this regard, it necessarily would be
regarded as harmless given the vocational expert’s testimony that even in light of the limitations
noted by Dr. Ozment—that is, standing up to four hours, walking less than 2, no stooping, sitting
up to six hours, and frequently lifting 5 to 10 pounds and occasionally lifting 10 to 20 pounds—
the claimant would be capable of performing her prior work as a human resources clerk and an
administrative clerk. (See Tr. 105-06.)

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CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner of
Social Security denying Plaintiff benefits be affirmed.
DONE and ORDERED this the 14th day of June, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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