Vargas v. Berryhill

Filing 22

Order re: 1 Complaint filed by Lori K. Vargas that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplementalsecurity income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/13/18. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LORI K. VARGAS,

*
*
*
*
* CIVIL ACTION NO. 17-00220-B
*
*
*
*
*
*

Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

ORDER
Plaintiff Lori K. Vargas (hereinafter “Plaintiff”), seeks
judicial review of a final decision of the Commissioner of Social
Security denying her claim for supplemental security income under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
On April 11, 2018, the parties consented to have the undersigned
conduct any and all proceedings in this case.
the

action

was

referred

to

the

undersigned

(Doc. 17).
to

Thus,

conduct

all

proceedings and order the entry of judgment in accordance with 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
careful

consideration

of

the

administrative

record

and

Upon
the

memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.

Procedural History1

I.

Plaintiff filed her application for benefits on August 18,
2014.

(Doc. 11 at 77).

Plaintiff alleges that she has been

disabled since October 22, 2013, due to breast cancer, no energy,
depression, body aches and pains, and continuous headaches.

(Id.

at 161, 165).
Plaintiff’s application was denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge L. Dawn Pischek (hereinafter “ALJ”) on April 22, 2016.
(Id. at 45).

Plaintiff attended the hearing with her counsel and

provided testimony related to her claims.

(Id. at 50).

A

vocational expert (“VE”) also appeared at the hearing and provided
testimony.

(Id. at 62).

On June 6, 2016, the ALJ issued an

unfavorable decision finding that Plaintiff is not disabled.
at 24).

(Id.

The Appeals Council denied Plaintiff’s request for review

on April 13, 2017.

(Id. at 5).

Therefore, the ALJ’s decision

dated June 6, 2016, became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.
was conducted on May 16, 2018.

remedies,

(Doc. 1).

(Doc. 20).

Plaintiff

Oral argument

This case is now ripe

for judicial review and is properly before this Court pursuant to

1

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.

2

42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
Whether the ALJ properly considered the
opinions
of
Plaintiff’s
treating
psychiatrist, Dr. Magdi Tageldin, M.D., and
consultative psychologist, John W. Davis,
Ph.D.

III. Factual Background
Plaintiff was born on July 16, 1969, and was forty-six years
of age at the time of her administrative hearing on April 22, 2016.
(Doc. 11 at 45, 161).

Plaintiff completed high school and two

years of college education.

(Id. at 51).

Plaintiff has no past relevant work.

(Id. at 37, 51-52).

At

her hearing, Plaintiff testified that she cannot work because she
“always feels tired” from going through chemotherapy; she has
neuropathy in her legs; and she has trouble focusing.
52).

(Id. at

Plaintiff testified that she has “good days and bad days.”

(Id.)
Plaintiff testified that she lives with her parents and her
three

younger

grandchild.

children

(Id. at 51).

(ages

17,

12,

and

8)

and

an

infant

She takes her children to school, and

she picks up her granddaughter from daycare.

(Id. at 53).

She

also helped care for her mother after her mother had a stroke.
(Id.).

In addition, Plaintiff cooks, does laundry, drives, shops,

handles a savings account, uses a checkbook, reads, walks, and
visits with family.

(Id. at 57).

3

Plaintiff testified that she

walks for exercise.
Plaintiff

(Id. at 60).

testified

that

she

takes

Lexapro

for

depression/anxiety, that she sees a therapist once a month, and
that her anxiety and depression cause her to be nervous and to not
want to be around people.

(Id. at 54, 56, 58, 61).

Plaintiff

also testified that her medication helps some and that she has
completed treatment for cancer and is now cancer free.

(Id. at

54, 62).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.

The Court’s review is limited to determining 1)

whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.2
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

A court

may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).

Sewell v. Bowen, 792

The Commissioner’s findings of

fact must be affirmed if they are based upon substantial evidence.
Brown

v.

Sullivan,

921

F.2d

1233,

1235

(11th

Cir.

1991);

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(holding substantial evidence is defined as “more than a scintilla,

2

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

4

but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.”).

In determining whether substantial evidence

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

Commissioner’s decision.

as

well

as

unfavorable,

to

the

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
V.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits must prove his or her disability.
416.912.

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to engage in any

substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.”

42 U.S.C. §§

423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
Social

Security

regulations

provide

a

five-step

The

sequential

evaluation process for determining if a claimant has proven his
disability.

20 C.F.R. §§ 404.1520, 416.920.

The claimant must first prove that he or she has not engaged
in substantial gainful activity.

The second step requires the

claimant to prove that he or she has a severe impairment or
combination of impairments.

If, at the third step, the claimant

5

proves that the impairment or combination of impairments meets or
equals a listed impairment, then the claimant is automatically
found disabled regardless of age, education, or work experience.
If the claimant cannot prevail at the third step, he or she must
proceed to the fourth step where the claimant must prove an
inability to perform their past relevant work.
810 F.2d 1001, 1005 (11th Cir. 1986).

Jones v. Bowen,

At the fourth step, the ALJ

must make an assessment of the claimant’s RFC.
Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).

See Phillips v.
The RFC is an

assessment, based on all relevant medical and other evidence, of
a claimant’s remaining ability to work despite his impairment. See
Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that the claimant is capable of engaging in another kind of
substantial gainful employment which exists in significant numbers
in the national economy, given the claimant’s residual functional
capacity, age, education, and work history.
764 F.2d 834, 836 (11th Cir. 1985).

Sryock v. Heckler,

If the Commissioner can

demonstrate that there are such jobs the claimant can perform, the
claimant must prove inability to perform those jobs in order to be
found disabled.
1999).

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.

See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.

1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir.

6

1985)).
VI.

Discussion
Substantial evidence supports the ALJ’s
assessment of the opinions of Plaintiff’s
treating psychiatrist, Dr. Magdi Tageldin,
M.D., and consultative psychologist, John W.
Davis, Ph.D.
In her brief, Plaintiff argues that the ALJ “reversibly erred”

in

failing

to

properly

refute

the

opinions

of

her

treating

psychiatrist, Magdi Tageldin, M.D., and consultative psychologist,
John W. Davis, Ph.D., both of whom opined that Plaintiff would
have “marked mental limitations.”

(Doc. 12 at 1).

Defendant

counters that the opinions of Dr. Tageldin and Dr. Davis were
inconsistent with the objective record evidence in the case and
that substantial evidence supports the ALJ’s assessment of the
opinion evidence and the RFC in this case.

(Doc. 13 at 2).

For

the reasons detailed herein, the Court finds that Plaintiff’s claim
is without merit.
As part of the disability determination process, the ALJ is
tasked

with

weighing

the

opinions

and

examining, and non-examining physicians.

findings

of

treating,

In reaching a decision,

the ALJ must specify the weight given to different medical opinions
and the reasons for doing so.

See Winschel v. Commissioner of

Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
do so is reversible error.

The failure to

See Williams v. Astrue, 2009 U.S. Dist.

LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).

7

When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.

Costigan v. Commissioner, Soc. Sec.

Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th
Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. Heckler, 776
F.2d 960, 962 (11th Cir. 1985)).

However, the opinion of “a one-

time examining physician — or psychologist” is not entitled to the
same deference as a treating physician.

Petty v. Astrue, 2010

U.S. Dist. LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla. Feb.
18, 2010) (citing Crawford, 363 F.3d at 1160).

An ALJ is also

“required to consider the opinions of non-examining state agency
medical and psychological consultants because they ‘are highly
qualified physicians and psychologists who are also experts in
Social Security disability evaluation.’”

Milner v. Barnhart, 275

Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished) (citing 20
C.F.R. § 404.1527(f)(2)(i)).

“The ALJ may rely on opinions of

non-examining sources when they do not conflict with those of
examining sources.”

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

when

unsupported by the evidence of record.

8

exists
it

to

is

discredit

contrary

to

the
or

Phillips v. Barnhart, 357

F.3d 1232, 1240 (11th Cir. 2004).

“Good cause may also exist where

a doctor’s opinions are merely conclusory, inconsistent with the
doctor’s medical records, or unsupported by objective medical
evidence.”

Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, *8,

2012 WL 3155570, *3 (M.D. Ala. 2012).

The ALJ is “free to reject

the opinion of any physician when the evidence supports a contrary
conclusion.”

Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)

(per curiam) (citation omitted); Adamo v. Commissioner of Soc.
Sec., 365 Fed. Appx. 209, 212 (11th Cir. 2010) (The ALJ may reject
any medical opinion if the evidence supports a contrary finding.).
In the instant case, the ALJ found that Plaintiff has the
severe

impairments

of

breast

cancer,

depressive

attention disorder, and personality disorder.

disorder,

(Doc. 11 at 26).

The ALJ also determined that Plaintiff has the RFC to perform a
range of light work with the following restrictions: Plaintiff can
have no exposure to unprotected heights or hazardous machinery.
Plaintiff is limited to simple, routine tasks, with occasional
change in routine work setting.

Plaintiff can have no direct

interaction with the public and can work in close proximity to
others but must work independently, not in a team.

(Id. at 28).

The ALJ also found that Plaintiff has no past relevant work.
(Id. at 37).

Based upon the testimony of the vocational expert,

the ALJ concluded that she can perform work such as a production
assembler, folder, and small products assembler (all light and

9

unskilled).

(Id. at 38, 64).

is not disabled.

Thus, the ALJ found that Plaintiff

Having thoroughly reviewed the record in this

case, the Court is satisfied that the ALJ’s findings related to
Plaintiff’s

RFC

and

the

weight

accorded

to

the

opinions

of

Plaintiff’s treating psychiatrist, Dr. Tageldin, and consultative
psychologist, Dr. Davis, are supported by substantial evidence.
First, with respect to Plaintiff’s treating psychiatrist, Dr.
Tageldin, the record shows that on February 17, 2016, Dr. Tageldin
completed

a

Questionnaire

Mental
and

Residual

opined

that

Functional
Plaintiff

Capacity

would

have

(RFC)
constant

deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely and appropriate manner,
marked limitations in her ability to understand, carry out, and
remember instructions, and marked limitations in her ability to
complete work-related activities in a normal workday or workweek.
(Id. at 379-80).
The

ALJ

accorded

“partial”

weight

to

Dr.

Tageldin’s

assessments. The ALJ found that Dr. Tageldin’s opinions in the
Mental RFC Questionnaire were excessive and inconsistent with the
medical evidence, including his own treatment records.
35).

(Id. at

Specifically, the record shows that Dr. Tageldin treated

Plaintiff from May 2015 to February 2016 for attention deficit
hyperactivity disorder (ADHD), irritability, and depression, for
which he prescribed Vyvanse, Wellbutrin, and counseling.

10

(Id. at

354-87).

While there is no question that Plaintiff has been

diagnosed with these mental health conditions, Dr. Tageldin’s
treatment

records

reflect

largely

conservative

treatment

with

medication and counseling, which has been adequate at controlling
her symptoms.

(Id. at 357, 361, 370-71, 373, 387).

In fact, Dr.

Tageldin’s mental examination findings document that Plaintiff
reported

symptoms

of

family,

depression,

inattention,

relationship

with

distractibility,

hyperactivity,

problems

and

irritability, but that she was exercising regularly and having no
sleep problems, no appetite problems, no suicidal or homicidal
ideation, no manic symptoms, no psychotic symptoms, fair insight
and

judgment,

normal

speech,

organized

orientation and memory, and “good” judgment.
370-71, 387).

thoughts,

normal

(Id. at 357, 361,

This evidence, which reflects relatively minimal

mental health complaints and largely normal psychiatric findings,
are inconsistent with the excessive limitations expressed in the
Mental RFC Questionnaire completed by Dr. Tageldin.
In addition to being inconsistent with his own treatment
records, Dr. Tageldin’s opinions are inconsistent with Plaintiff’s
treatment

records

from

Dr.

Brian

Heller,

M.D.,

Plaintiff for breast cancer from 2013 to 2016.
records

likewise

consistently

reflect

who

treated

Dr. Heller’s

normal

psychiatric

examination findings such as no depression, no anxiety, no mania,
no

mood

swings,

no

insomnia,

11

alert,

cooperative,

oriented,

appropriate

mood

and

affect,

coherent

speech,

very

pleasant,

“energy level and mood have . . . improved since starting on
antidepressant,” “depression improved, continue antidepressant,”
“doing very well,” “no complaints,” “looks and feels well,” and
“continuing to do well.”

(Id. at 265-66, 269, 271-72, 275, 278,

281, 284, 287, 289-90, 293, 315, 319-21, 338-50, 381-83).
Likewise,

Dr.

Tageldin’s

opinions

are

inconsistent

with

Plaintiff’s treatment records from her treatment providers at the
Cardiology Center for the period of September 2014 to April 2015.
Those providers consistently noted, on psychiatric examinations,
“no sleep disturbances,” “no anxiety and no depression,” and normal
orientation.

(Id. at 304-10, 349-50).

In addition, evidence of Plaintiff’s activities of daily
living reflects that she lives with her parents, her three younger
children (ages 17, 12, and 8), and an infant grandchild, that she
takes her children to school, that she picks up her granddaughter
from daycare, that she helped take care of her mother after her
mother had a stroke, that she has no problems with her own personal
care, that she cooks, does laundry, makes beds, drives, shops,
handles a savings account, uses a checkbook, reads, walks, visits
with family, exercises, follows written and spoken instructions
well, and gets along “great” with authority figures, although she
does not handle stress well.

(Id. at 51, 53, 57, 60, 174-80).

The foregoing substantial evidence, on the whole, reflects

12

successful, conservative treatment for Plaintiff’s mental health
conditions resulting in largely normal examination findings and
adequate control of Plaintiff’s symptoms.

As the ALJ found, this

evidence is inconsistent with the severe limitations expressed by
Dr. Tageldin in the Mental RFC Questionnaire dated February 17,
2016.

Therefore,

the

ALJ

had

good

cause

to

discredit

Dr.

Tageldin’s opinions.3
Plaintiff also argues that the ALJ erred in rejecting the
opinion of one-time examining psychologist, Dr. John W. Davis,
Ph.D., who stated in a Medical Source Statement (“MSS”) (Mental)
form dated March 18, 2016, that Plaintiff had marked or extreme
limitations

in

understanding,

remembering,

and

carrying

out

complex instructions, making judgments on complex work-related
decisions, interacting appropriately with the public, supervisors,
and

co-workers,

and

responding

appropriately

to

usual

work

situations and changes in a routine work setting, and that the
limitations on her ability to understand, remember, and carry out
simple instructions and make judgments on simple work-related
decisions was mild.

(Id. at 398-400).

According to Dr. Davis’ treatment notes, Plaintiff reported

3

The ALJ accepted Dr. Tageldin’s opinion that Plaintiff had
moderate limitations in ability to respond appropriately to
customary work pressures and, therefore, the ALJ restricted
Plaintiff’s work to simple, routine tasks due to her moderate
concentration issues. (Doc. 11 at 28, 36).

13

being diagnosed with depression and ADHD in 1984 (when she was
fifteen years old), at which time she received in-patient hospital
care for one year. 4

(Id. at 401).

Plaintiff also reported

receiving monthly outpatient mental health treatment beginning in
2015.

(Id. at 402).

Dr. Davis noted that Plaintiff was taking

Wellbutrin and Vyvanse, which was helping her focus and regulating
her mood.

(Id.).

Dr. Davis’ examination findings included some

anxiety and depression, but normal speech, capacity for a full
range of emotional qualities, appropriate emotional responses to
thought,

content,

concentration

and

and

situation,

attention,

normal

normal

orientation,

thought

processes,

normal
normal

thought content, fair judgment and insight, and a full range of
activities of daily living including taking care of her children,
doing chores, having normal social relationships, and managing her
own personal care needs.

(Id. at 404-05).

Dr. Davis’ impression was “unspecified depressive disorder.”
(Id. at 405).

He further opined that “it is reasonable to expect

a favorable response to treatment but it may take several years;”
that Plaintiff’s “mental state is a function of her general medical
condition and is likely to improve or deteriorate correlated with
her general medical condition;” that her ability to interact with

4

Plaintiff also reported receiving in-patient mental health
treatment for three days at age 16. (Doc. 11 at 402).

14

the public, co-workers, and supervisors is poor; that her ability
to

understand,

remember,

and

carry

out

simple

and

complex

instructions is poor; that she could manage any funds that might
be forthcoming; and that her mental capacity “in and of itself is
not disabling” but should be considered as an add-on factor when
considering her general medical condition.

(Id. at 398-99, 405-

06).
The ALJ accorded partial weight to Dr. Davis’ assessments.
The

ALJ

found

that

Dr.

Davis’

opinions

were

internally

inconsistent, as well as inconsistent with his own normal mental
examination findings and the medical evidence from Plaintiff’s
treatment providers detailed above.
noted

the

absence

of

any

(Id. at 36).

evidence

The ALJ also

indicating

a

need

for

hospitalization or inpatient care for Plaintiff’s mental health
conditions since she was sixteen years old.

(Id.).

As the ALJ

found, the foregoing evidence is inconsistent with the severity of
limitations expressed by Dr. Davis in the March 18, 2016, MSS
(Mental) form and in his report.

Therefore, the ALJ had good cause

to discredit Dr. Davis’ opinions.
Plaintiff also argues that the ALJ erred in giving great
weight to the opinions of State Agency reviewer, Dr. Harold R.
Veits, M.D., who reviewed Plaintiff’s medical records on November
13, 2014, and opined that Plaintiff had only a mild restriction in
activities

of

daily

living,

mild

15

difficulties

in

maintaining

social functioning and concentration, persistence or pace, and no
repeated episodes of decompensation.
the

ALJ

found,

Dr.

Veits’

(Doc. 11 at 37, 74, 76).

opinions

are

consistent

with

As
the

substantial medical evidence in this case and do not conflict with
the credible opinions of any examining sources; thus, the ALJ
properly accorded them great weight.

See Harris v. Colvin, 2014

U.S. Dist. LEXIS 159749, *25, 2014 WL 5844240, *8 (S.D. Ala. Nov.
12, 2014).

Moreover, while Plaintiff is correct that Dr. Veits

did not have the benefit of reviewing Dr. Tageldin’s or Dr. Davis’
evaluations when he rendered his opinions on November 13, 2014,
the ALJ did have the benefit of all of Plaintiff’s medical records,
and Dr. Veits’ opinions are consistent with the record as a whole.
The Court further finds, based on the evidence detailed above,
that

substantial

evidence

supports

the

ALJ’s

finding

that

Plaintiff has the RFC to perform a range of light work, with the
stated restrictions.5

Indeed, Plaintiff has failed to show that

any limitations caused by her impairments exceed the RFC and are
not accommodated by the RFC and its stated restrictions.

5

For each

As the ALJ pointed out, Plaintiff’s “symptoms of depressive
disorder, attention disorder, and personality disorder and
problems with concentration and social interaction are addressed
in the limitation to simple, routine tasks, occasional change in
routine work setting, no direct interaction with the public, and
work in close proximity to others that is independent and not in
a team.” (Doc. 11 at 37).

16

of these reasons, Plaintiff’s claim must fail.6
VII.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
of Social Security denying Plaintiff’s claim for supplemental
security income be AFFIRMED.
DONE this 13th day of September, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

6

Although Plaintiff has cited evidence in the record which
she claims supports a finding that she is disabled, that is, at
best, a contention that the record evidence supports a different
finding. That is not the standard on review. The issue is not
whether there is evidence in the record that would support a
different finding, but whether the ALJ’s finding is supported by
substantial evidence. See Figueroa v. Commissioner of Soc. Sec.,
2017 U.S. Dist. LEXIS 181734, *15-16, 2017 WL 4992021, *6-7 (M.D.
Fla. Nov. 2, 2017) (“Although Plaintiff cites to certain test
results, notes, and physical therapy findings as support for her
contention that ‘there were objective medical findings that
support the doctor’s opinions about [her] limitations’ . . ., this
is, at best, a contention that the record could support a different
finding. This is not the standard on review. The issue is not
whether a different finding could be supported by substantial
evidence, but whether this finding is.”).

17